| People v Colavito |
| 2010 NY Slip Op 04351 [73 AD3d 1004] |
| May 18, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Colavito, 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 August 29, 2008, which, after a hearing to redetermine the defendant's sex offender risklevel pursuant to the stipulation of settlement in Doe v Pataki (3 F Supp 2d 456 [1998]),designated him a level two sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
A court has the discretion to depart from the presumptive risk level, as determined by use ofthe risk assessment instrument, based upon the facts in the record (see People v Bowens, 55 AD3d809, 810 [2008]; People vTaylor, 47 AD3d 907, 907 [2008]; People v Burgos, 39 AD3d 520, 520 [2007]; People v Hines, 24 AD3d 524,525 [2005]). However, "utilization of the risk assessment instrument will generally 'result in theproper classification in most cases so that departures will be the exception not the rule' " (People v Guaman, 8 AD3d 545[2004], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at4 [Nov. 1997]; see People v Bowens, 55 AD3d at 810; People v Taylor, 47AD3d at 908; People v Burgos, 39 AD3d at 520; People v Hines, 24 AD3d at525). 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 People v Bowens, 55 AD3d at 810; People vTaylor, 47 AD3d at 908; People v Burgos, 39 AD3d at 520; People v Hines,24 AD3d at 525). Further, there must be clear and convincing evidence of the existence of aspecial circumstance to warrant such a departure (see People v Bowens, 55 AD3d at 810;People v Burgos, 39 AD3d at 520; People v Agard, 35 AD3d 568, 568 [2006]; People v Ventura, 24 AD3d 527[2005]; People v Dexter, 21 AD3d403, 404 [2005]).
Here, the Supreme Court providently exercised its discretion in denying the defendant'srequest for a downward departure, as the defendant failed to present clear and convincingevidence of special circumstances warranting such a departure (see People v Bowens, 55AD3d at 810; People v Taylor, 47 AD3d at 908; see also People v Wragg, 41 AD3d 1273, 1274 [2007]; Peoplev Santos, 25 Misc 3d 1212[A], 2009 NY Slip Op 52040[U] [2009]; cf. People v Stevens, 55 AD3d892 [2008]). Covello, J.P., Dickerson, Eng and Austin, JJ., concur.