| People v Bussie |
| 2011 NY Slip Op 03222 [83 AD3d 920] |
| April 19, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Quentin L. Bussie, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), datedApril 19, 2010, which, after a hearing, designated him a level two sex offender pursuant toCorrection 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 545,545 [2004], quoting Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 4 [Nov. 1997]; 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). 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).
Here, the County Court providently exercised its discretion in denying the defendant'srequest for a downward departure, as the defendant failed to demonstrate the existence ofmitigating circumstances of a kind, or to a degree, not otherwise adequately taken into account bythe guidelines (see People vMendez, 79 AD3d 834 [2010], lv denied 16 NY3d 707 [2011]; People v Maiello, 32 AD3d 463[2006]). Rivera, J.P., Dickerson, Lott and Cohen, JJ., concur.