| People v Whidbee |
| 2012 NY Slip Op 08503 [101 AD3d 840] |
| December 12, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Charles Whidbee, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), datedMay 18, 2011, which, after a hearing, designated him a level three sex offender pursuant toCorrection Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The County Court correctly determined that it lacked the discretion to downwardly departfrom the presumptive risk level because the defendant failed to identify, as a matter of law, amitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account bythe Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006)(hereinafter the Guidelines and Commentary) (see People v Wyatt, 89 AD3d 112, 124, 128 [2011]). Specifically,contrary to the defendant's contention, the fact that the defendant, of his own volition, did notcomplete his sex offense, was adequately taken into account by the assessment of 0 points forrisk factor two: "Sexual Contact with Victim." As suggested in the Commentary to theGuidelines, the direction to assess 0 points in that category where no sexual contact actuallyoccurred contemplates the situation in which there was no sexual contact with the victim due tothe defendant's "change of mind" (Guidelines and Commentary at 9). Accordingly, the mitigatingfactor cited by the defendant has adequately been taken into account by the Guidelines andCommentary, and, therefore, cannot serve as the basis for a downward departure (seegenerally People v Wyatt, 89 AD3d at 124, 128). Skelos, J.P., Hall, Austin and Hinds-Radix,JJ., concur.