| People v Davis |
| 2009 NY Slip Op 07385 [66 AD3d 749] |
| October 13, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AlvinDavis, Appellant. |
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Appeal by the defendant from an order of the Supreme Court, Queens County (Buchter, R.),dated October 23, 2007, 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.
In establishing the appropriate risk level determination under the Sex Offender RegistrationAct (Correction Law art 6-C), the People bear the burden of proving the necessary facts by clearand convincing evidence (see Correction Law § 168-n [3]; People v Lawless, 44 AD3d 738[2007]).
A court, in the exercise of its discretion, may depart from the presumptive risk leveldetermined by the risk assessment instrument based upon the facts in the record (see People v Taylor, 47 AD3d 907[2008]; People v Inghilleri, 21AD3d 404, 405 [2005]). However, "[t]he expectation is that the [risk assessment] instrumentwill result in the proper classification in most cases so that departures will be theexception—not the rule" (Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 4 [2006]). A departure from the presumptive risk level is warranted where"there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise notadequately taken into account by the guidelines" (Sex Offender Registration Act: RiskAssessment Guidelines and Commentary, at 4 [2006]; see People v Taylor, 47 AD3d 907, 908 [2008]).
Here, the court considered the risk assessment instrument, the case summary, and thevictim's out-of-court statements to the prosecutor in establishing that the victim sustained aserious physical injury in the form of a broken vertebra, which caused pain and difficultywalking for a period of two years. Thus, the Supreme Court properly determined that there wasclear and convincing evidence to support upward departure from the presumptive level two sexoffender designation. Skelos, J.P., Santucci, Belen and Hall, JJ., concur.