| People v Riley |
| 2011 NY Slip Op 05683 [85 AD3d 1141] |
| June 28, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Phillip N. Riley, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), datedMay 13, 2010, which, after a hearing pursuant to Correction Law article 6-C, designated him alevel three sex offender.
Ordered that the order is reversed, on the law, without costs or disbursements, and thedefendant is redesignated a level two sex offender.
A court has the discretion to depart from the presumptive risk level based upon the facts inthe record, but a departure from the presumptive risk level is warranted only where "there existsan aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequatelytaken into account by the guidelines" (Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 4 [2006]; see People v Kraus, 45 AD3d 826, 827 [2007]). Further, inasmuchas the risk assessment instrument will generally result in the proper classification, "departureswill be the exception—not the rule" (Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 4 [2006]; see People v Burgos, 39 AD3d 520 [2007]; People v Guaman, 8 AD3d 545[2004]). Here, contrary to the County Court's finding, there was no aggravating circumstance notadequately taken into account by the guidelines, so an upward departure was not authorized (see People v Hegazy, 25 AD3d675, 676 [2006]).
Moreover, to the extent that the County Court did not intend to depart from the presumptiverisk level, but instead intended to apply the "Mental Abnormality" override, which would itselfhave classified the defendant presumptively as a level three offender, the record fails to supportapplication of that override. The Sex Offender Registration Act Guidelines provide thatapplication of the "Mental Abnormality" override is permissible when "[t]here has been a clinicalassessment that the offender has a psychological, physical, or organic abnormality that decreaseshis ability to control impulsive sexual behavior" (Sex Offender Registration Act: RiskAssessment Guidelines and Commentary [2006]; see People v Martin, 79 AD3d 717 [2010]). Here, however, therehas been no such clinical assessment, and the record does not suggest, much less establish, by therequired clear and convincing evidence, that the defendant in fact suffers from such anabnormality (cf. People v Chandler,48 AD3d 770, 771-772 [2008]). Consequently, application of the mental abnormalityoverride was improper (see Correction Law § 168-l [5] [a] [i]; People vKraus, 45 AD3d at 827; People vZehner, 24 AD3d 826, 827 [2005]). Accordingly, the County Court's classification ofthe [*2]defendant as a level three offender was improper (seePeople v Chandler, 48 AD3d at 771-772; People v Burgos, 39 AD3d at 520-521).Mastro, J.P., Skelos, Leventhal and Roman, JJ., concur.