| People v Fabara |
| 2008 NY Slip Op 02126 [49 AD3d 619] |
| March 11, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v OmarFabara, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Aisha S. Greene of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Wong, J.),dated September 11, 2006, which, after a hearing, designated him a level three sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Although departures from the presumptive risk level determined by the risk assessmentinstrument are the exception rather than the rule, a departure is warranted where clear andconvincing evidence demonstrates the existence of an aggravating or mitigating factor that inkind or degree is not otherwise taken into account by the risk assessment guidelines (see People v Thompson, 31 AD3d409 [2006]; People v Forney,28 AD3d 446, 447 [2006]; People v White, 25 AD3d 677 [2006]). Contrary to the defendant'scontention, the Supreme Court's determination to depart from the presumptive risk level anddesignate him a level three sex offender was supported by clear and convincing evidence based,inter alia, on the case summary prepared by the Board of Examiners of Sex Offenders, thedefendant's statements to the police, and the victims' statements (see People v Leibach, 39 AD3d1093, 1093-1094 [2007]; People vAllen, 24 AD3d 979, 980 [2005]). Skelos, J.P., Fisher, Covello and Eng, JJ., concur.