| People v Twyman |
| 2009 NY Slip Op 00665 [59 AD3d 415] |
| February 3, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Arthur Twyman, 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(Bellantoni, J.), entered January 1, 2008, as amended February 20, 2008, which, after a hearing,designated him a level three sex offender pursuant to Correction Law article 6-C.
Ordered that the order, as amended, is affirmed, without costs or disbursements.
In determining an offender's presumptive risk level under the Sex Offender Registration Act(hereinafter SORA), the use of the risk assessment instrument is generally recognized to "resultin the proper classification in most cases so that departures will be the exception—not therule" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006];see People v Stevens, 55 AD3d892 [2008]; People v Barad, 50AD3d 988 [2008]; People vGuaman, 8 AD3d 545 [2004]). However, a court is empowered to exercise its discretionand depart from the presumptive risk level based upon the facts in the record, where "there existsan aggravating or mitigating factor of a kind or to a degree, not otherwise adequately taken intoaccount by the guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 4 [2006]; see People vAbdul-Qawiyy, 49 AD3d 703 [2008]; People v Guaman, 8 AD3d 545 [2004]). To warrant a departurefrom the presumptive risk level, there must be clear and convincing evidence of a specialcircumstance (see People vAbdul-Qawiyy, 49 AD3d 703 [2008]; People v Burgos, 39 AD3d 520 [2007]; People v Dexter, 21 AD3d 403[2005]).
Here, the court properly considered as an aggravating factor, justifying its upward departurefrom the defendant's presumptive risk level, the underlying facts of the defendant's 1985conviction for assault in the third degree. Although the defendant denies any sexual element tothat assault, the [*2]12-year-old victim's sworn statement, whichconstituted reliable hearsay evidence upon which the County Court properly relied (seeCorrection Law § 168-n [3]; People v Bolton, 50 AD3d 990 [2008]; People v Mingo, 49 AD3d 148,151 [2008]; People v Case, 46AD3d 996, 997 [2007]), that the defendant tried to remove her pants during the assault,constituted clear and convincing evidence that the assault contained a sexual component (see People v Balic, 52 AD3d 201[2008]; People v Brown, 45 AD3d1123 [2007]). Accordingly, the defendant's designation as a level three sex offender will notbe disturbed.
In light of our determination, we need not address the defendant's remaining contentions.Rivera, J.P., Miller, Carni and McCarthy, JJ., concur.