| People v Walker |
| 2009 NY Slip Op 08199 [67 AD3d 760] |
| November 10, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Steven Walker, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and AnneGrady of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.),dated October 25, 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.
Based upon his 1986 conviction in New Jersey for aggravated sexual assault, the defendantwas presumptively classified as a level two sex offender by the Board of Examiners of SexOffenders, which did not recommend an upward departure. However, at a later hearing, thePeople sought such departure based upon the defendant's 2004 conviction in New Jersey forfailing to reregister his sex offender status with local authorities. The Supreme Court concludedthat the defendant's failure to "obey the requirements of registration in the past and [hisconviction] of a crime for failing to [re]register" was an aggravating factor that warranted anupward departure from level two to level three. We agree.
Utilization of the risk assessment instrument will generally "result in the properclassification in most cases so that departures will be the exception—not the rule" (SexOffender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006 ed]; see People v Ventura, 24 AD3d527 [2005]; People v Dexter,21 AD3d 403 [2005]). However, a court is empowered to exercise its discretion anddepart from the presumptive risk level based upon the circumstances presented in the record(see Matter of VanDover v Czajka, 276 AD2d 945 [2000]). A departure from the [*2]presumptive risk level is warranted where "there exists anaggravating 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 ed]; see Peoplev Abdullah, 31 AD3d 515 [2006]; People v Dexter, 21 AD3d 403 [2005]). There must be clear andconvincing evidence of the existence of a special circumstance to warrant a departure from thepresumptive risk level (see People vInghilleri, 21 AD3d 404 [2005]; People v Guaman, 8 AD3d 545 [2004]; People v Hampton,300 AD2d 641 [2002]; People v Bottisti, 285 AD2d 841 [2001]).
Here, the People demonstrated by clear and convincing evidence (i.e., the defendant'sconviction for failing to reregister), the existence of an aggravating factor that was notadequately taken into account by the guidelines and which justified the court's determination togrant the People's request for an upward departure (see People v Roberts, 54 AD3d 1106 [2008]; People v Hill, 50 AD3d 990[2008]). Covello, J.P., Santucci, Chambers and Lott, JJ., concur.