| People v Foy |
| 2008 NY Slip Op 02807 [49 AD3d 835] |
| March 25, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v PerryFoy, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Lois Cullen Valerio, RichardLongworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Westchester County (Loehr, J.),entered May 7, 2007, which, after a hearing, designated him a level two sex offender pursuant toCorrection Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
"Utilization of the risk assessment instrument will generally result in the proper classificationin most cases so that departures will be the exception not the rule . . . A departurefrom the presumptive risk level is warranted where there exists an aggravating or mitigatingfactor of a kind or to a degree not otherwise adequately taken into account by the guidelines" (People v O'Neal, 26 AD3d 365,365 [2006]). There must be clear and convincing evidence of the existence of a specialcircumstance to warrant a departure (seePeople v Dexter, 21 AD3d 403 [2005]).
Here, the County Court providently exercised its discretion in denying the request for adownward departure based upon the defendant's contention that his conviction was for statutoryrape, as opposed to forcible rape. This factor was already taken into account in the riskassessment instrument, as indicated by the failure to assess points therein for the use of force (see People v Walker, 47 AD3d692 [2008]).
The defendant's remaining contention is without merit. Rivera, J.P., Lifson, Florio andChambers, JJ., concur.