| People v Lee |
| 2010 NY Slip Op 07729 [77 AD3d 897] |
| October 26, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Edward Lee, Appellant. |
—[*1]
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.),dated August 1, 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, 47 AD3dat 908; People v Burgos, 39 AD3d at 520; People v Hines, 24 AD3d at 525). Adeparture from the presumptive risk level is warranted where "there exists an aggravating ormitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account bythe guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at4 [2006]; see People v Bowens, 55 AD3d at 810; People v Taylor, 47 AD3d at908; 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 a special circumstance towarrant such a departure (see People v Bowens, 55 AD3d at 810; People vBurgos, 39 AD3d at 520; People vAgard, 35 AD3d 568, 568 [2006]; People v Ventura, 24 AD3d 527 [2005]; People v Dexter, 21 AD3d 403,404 [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 a departure from his presumptive risk level twodesignation (see People v Lynk, 74AD3d 929 [2010], lv denied 15 NY3d 708 [2010]). Dillon, J.P., Florio, Balkin andRoman, JJ., concur.