| People v Scott |
| 2011 NY Slip Op 05249 [85 AD3d 890] |
| June 14, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lorenzo Scott, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel; Gamaliel Marrero on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.),dated February 24, 2009, which, after a hearing, designated him a level two sex offender pursuantto Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
"[U]tilization of the risk assessment instrument will generally 'result in the properclassification 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]; seePeople v Martin, 79 AD3d 717 [2010]). However, "an objective instrument, no matterhow well designed, will not fully capture the nuances of every case" (Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary, at 4 [2006]). An upward departure from thepresumptive risk level is warranted where "there exists an aggravating . . . factor ofa kind, or to a degree, that is otherwise not adequately taken into account by the guidelines"(id.; see People v Lee, 77AD3d 897, 898 [2010]; People vBowens, 55 AD3d 809, 810 [2008]).
Here, the People presented evidence, including the defendant's own admission, establishingthat he intended to rape the victim, but his attempt was thwarted by a police officer who heardthe victim screaming for help. This was an aggravating factor of a kind, or to a degree, otherwisenot adequately taken into account by the guidelines. Since the rape was not completed, thedefendant was assessed only 10 points under factor 2 for touching that occurred under theclothing, and not 25 points for sexual intercourse. As a result, the defendant's total assessmentwas 65 points, placing him at level one. However, it is "evident that [the defendant] intended torape his victim, [and] that the lack of points in this category result[ed] in an under-assessment ofthe [defendant's] actual risk to public safety" (Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 9 [2006]; see People v Mudd, 43 AD3d 1128, 1129 [2007]). Accordingly, theSupreme Court providently exercised its discretion in upwardly departing from level one to leveltwo (see People v Mudd, 43 AD3d at 1129).
The defendant's remaining contentions are academic. Mastro, J.P., Angiolillo, Chambers andCohen, JJ., concur.