| People v Jacobs |
| 2009 NY Slip Op 03146 [61 AD3d 835] |
| April 21, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Damon Jacobs, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart andMichael Shollar of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.),dated September 11, 2007, which, after a hearing, designated him a level two sex offenderpursuant to Correction 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 Derrico, 55 AD3d810, 811 [2008]; People v Walker,47 AD3d 692 [2008]; People vGuaman, 8 AD3d 545 [2004]). However, "utilization of the risk assessment instrumentwill generally 'result in the proper classification in most cases, so that departures will be theexception not the rule' " (People vGuaman, 8 AD3d 545 [2004], quoting Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 4 [Nov. 1997]; see People v Derrico, 55 AD3d 810 [2008]; People v Walker, 47 AD3d 692[2008]). A departure from the presumptive risk level is warranted where "there exists anaggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately takeninto account by the guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 4 [2006]; see alsoPeople v Derrico, 55 AD3d 810, 811 [2008]; People v Walker, 47 AD3d 692, 693 [2008]; People v Guaman, 8 AD3d 545[2004]). Such a determination must be supported by clear and convincing evidence (see People v Derrico, 55 AD3d810 [2008]; People v Walker,47 AD3d 692, 693 [2008]; People v Guaman, 8 AD3d 545 [2004]).
Here, the defendant failed to demonstrate by clear and convincing evidence that there existeda mitigating factor of a kind or to a degree not otherwise taken into account by the guidelinesthat warranted a downward departure from his presumptive risk level designation. [*2]Thus, the Supreme Court providently exercised its discretion indenying such a departure. Rivera, J.P., Angiolillo, Eng and Belen, JJ., concur.