| People v Fiol |
| 2008 NY Slip Op 02806 [49 AD3d 834] |
| March 25, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JoseFiol, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, and Tamara Daniels of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Aloise, J.),dated January 5, 2006, which, after a hearing, designated him a level three sex offender pursuantto Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
A departure from the presumptive risk level, as determined by the defendant's total risk factorscore on the risk assessment instrument submitted by the New York State Board of Examiners ofSex Offenders (hereinafter the Board), is warranted where "there exists an aggravating ormitigating factor of a kind, or to a degree, not otherwise adequately taken into account by theguidelines. The court's finding in this regard must be supported by clear and convincingevidence" (People v Hands, 37AD3d 441 [2007] [internal quotation marks and citations omitted]).
Contrary to the defendant's contention, the Board's case summary, together with theinformation in the probation report, provided clear and convincing evidence that aggravatingfactors existed which were not fully taken into account by the guidelines, and which supportedthe Board's strong recommendation that an upward departure to a level three designation waswarranted. Accordingly, the Supreme Court providently exercised its discretion in making anupward departure from the presumptive level one designation, as determined by the defendant'sscore, to a level three designation (seePeople v Mudd, 43 AD3d 1128, 1129 [2007]; People v Hands, 37 AD3d 441 [2007]; cf. People v Burgos, 39 AD3d 520[2007]).
There is no merit to the defendant's contention that, in making an upward departure as to the[*2]defendant's risk level determination, the Supreme Court wasrestricted to a one-level upward departure (see Sex Offender Registration Act: RiskAssessment Guidelines and Commentary, at 4-5 [2006 ed]; see also People v Thornton, 34 AD3d 1026 [2006]; People v Kwiatkowski, 24 AD3d878 [2005]). Rivera, J.P., Lifson, Florio and Chambers, JJ., concur.