| People v Cohen |
| 2010 NY Slip Op 04350 [73 AD3d 1003] |
| May 18, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v David Cohen, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Carrie A. Ciganek of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Rockland County (Alfieri, J.),dated March 5, 2009, which, after a hearing, designated him a level two sex offender pursuant toCorrection Law article 6-C.
Ordered that the order is reversed, on the law, without costs or disbursements, and thedefendant is designated a level one sex offender.
Although a court is empowered to exercise its discretion and depart from the presumptiverisk level based upon facts in the record, it has been recognized that utilization of the riskassessment instrument will generally " 'result in the proper classification in most cases so thatdepartures will be the exception not the rule' " (People v Coffey, 45 AD3d 658, 658 [2007], quoting Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary, at 4 [Nov. 1997]; see People v Burgos, 39 AD3d520 [2007]; People vInghilleri, 21 AD3d 404, 405 [2005]). A departure from the presumptive risk level iswarranted only where " 'there exists an aggravating or mitigating factor of a kind or to a degree,not otherwise adequately taken into account by the guidelines' " (People v Coffey, 45AD3d at 658, quoting Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 4 [Nov. 1997]; see People v Burgos, 39 AD3d at 520; People v Hegazy, 25 AD3d 675,676 [2006]; People v Inghilleri, 21 AD3d at 405). There must be clear and convincingevidence of a special circumstance to warrant a departure from the presumptive risk level(see People v Coffey, 45 AD3d at 658; People v Burgos, 39 AD3d at 520;People v Inghilleri, 21 AD3d at 405).
Here, the record does not contain clear and convincing evidence demonstrating the existenceof aggravating factors of a kind or to a degree not otherwise adequately taken into account by theguidelines that would warrant an upward departure (see People v Fuller, 37 AD3d 689 [2007]). Certain circumstancessurrounding the defendant's sex offenses that the County Court relied upon are adequately takeninto account by the guidelines, and the remaining circumstances not taken into account by theguidelines are not probative on the issue of the defendant's "risk of reoffense" (Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary, at 5 [2006]; see People vLyons, 72 AD3d 776 [2010]; People v Burgos, 39 AD3d at 521).[*2]
The defendant's remaining contentions need not beaddressed in light of our determination. Skelos, J.P., Santucci, Leventhal and Hall, JJ., concur.