| People v Derrico |
| 2008 NY Slip Op 08109 [55 AD3d 810] |
| October 21, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LaquanDerrico, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Hinrichs, J.), datedMarch 26, 2007, which, after a hearing, designated him a level three sex offender pursuant toCorrection Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
A court is empowered to exercise its discretion and depart from the presumptive risk leveldetermined by the risk assessment instrument based upon the circumstances in the record (see People v Taylor, 47 AD3d 907,908 [2008]; People v Inghilleri, 21AD3d 404 [2005]). However, "utilization of the risk assessment instrument will generally 'result inthe proper classification in most cases so that departures will be the exception not the rule' " (People v Guaman, 8 AD3d 545, 545[2004], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4[Nov. 1997]). A departure from the presumptive risk level is warranted where "there exists anaggravating or mitigating factor of a kind or to a degree not otherwise taken into account by theguidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4[2006]). Furthermore, such a determination must be supported by clear and convincing evidence (see People v Guaman, 8 AD3d 545[2004]; People v Hampton, 300 AD2d 641 [2002]).
The mitigating factors alleged by the defendant were taken into account by the guidelines and donot warrant a departure. The defendant has failed to meet his burden of establishing that a downwarddeparture is appropriate. Accordingly, the County Court properly [*2]found that the presumptive risk level accurately assessed the defendant'slikelihood of reoffending and, thus, properly declined to depart from that risk level assessment. Fisher,J.P., Covello, McCarthy and Leventhal, JJ., concur.