| People v Arciola |
| 2008 NY Slip Op 06814 [54 AD3d 741] |
| September 9, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael A. Arciola, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller ofcounsel), for respondent.
Appeal by the defendant from an order of the County Court, Dutchess County (Dolan, J.),dated November 4, 2005, 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.
Pursuant to the Sex Offender Registration Act (Correction Law art 6-C), a hearing court hasthe discretion to depart from the presumptive risk level determined by the risk assessmentinstrument (see People v Hines, 24AD3d 524, 525 [2005]; People vGirup, 9 AD3d 913 [2004]; People v Guaman, 8 AD3d 545 [2004]). However, "utilization ofthe risk assessment instrument will generally 'result in the proper classification in most cases sothat departures will be the exception not the rule' " (People v Guaman, 8 AD3d 545, 545 [2004], quoting Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary, at 4 [Nov. 1997]; see People v Ventura, 24 AD3d527 [2005]; People v Hines, 24AD3d 524, 525 [2005]; People vDexter, 21 AD3d 403, 404 [2005]). A departure from the presumptive risk level iswarranted where "there exists an aggravating or mitigating factor of a kind, or to a degree, that isotherwise not adequately taken into account by the guidelines" (Sex Offender Registration Act:Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v White, 25 AD3d 677 [2006]; People v Guaman, 8 AD3d 545[2004]).
Here, the County Court providently exercised its discretion in departing from thepresumptive risk level and designating the defendant a level three sex offender (see People v Hands, 37 AD3d 441,442 [2007]). In this regard, the County Court properly considered, inter alia, the defendant's priorextensive criminal history and his parole violations (see People v Kettles, 39 AD3d 1270, [*2]1271 [2007]).
The defendant's remaining contention is without merit. Rivera, J.P., Lifson, Santucci andMiller, JJ., concur.