| People v Abdul-Qawiyy |
| 2008 NY Slip Op 02565 [49 AD3d 703] |
| March 18, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Mustafa Abdul-Qawiyy, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Anne Grady of counsel), forrespondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.),dated November 6, 2006, which, after a hearing to redetermine the defendant's sex offender risklevel pursuant to the stipulation of settlement in Doe v Pataki (3 F Supp 2d 456 [1998]),designated him a level three sex offender pursuant to Correction Law article 6-C .
Ordered that the order is affirmed, without costs or disbursements.
A departure from the presumptive risk level is warranted where "there exists an aggravatingor mitigating factor of a kind or to a degree, not otherwise adequately taken into account by theguidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4[2006 ed]; see People v White, 25AD3d 677 [2006]; People vGuaman, 8 AD3d 545 [2004]). Further, there must be clear and convincing evidence ofthe existence of a special circumstance to warrant any departure (see People v Dexter, 21 AD3d403, 404 [2005]). Here, the Supreme Court's determination to depart from the presumptiverisk level and designate the defendant a level three sex offender was proper (see People v James, 45 AD3d 555,556 [2007]; People v Buss, 44AD3d 634, 635 [2007]; People vMudd, 43 AD3d 1128, 1129 [2007], lv denied 9 NY3d 817 [2008]; People v Kettles, 39 AD3d 1270,1271 [2007]; People v Wilkens, 33AD3d 399 [2006]; People vWhite, 25 AD3d 677 [2006]). Rivera, J.P., Skelos, Santucci and Leventhal, JJ., concur.