Opinion
2008-402 Q C.
Decided on May 11, 2009.
Appeal from an order of the Criminal Court of the City of New York, Queens County (Pauline A. Mullings, J.), dated December 17, 2007. The order, after a hearing pursuant to Correction Law article 6-C, designated defendant a level three sex offender.
Order affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
Defendant pleaded guilty to the charge of attempted rape in the third degree (Penal Law §§ 110.00, 130.25). He was subsequently assessed 135 points in the risk assessment instrument and assigned a presumptive risk level three sex offender designation. The Board of Examiners of Sex Offenders (the Board) indicated that a downward departure from level three to level one was warranted. The Board, in its case summary, noted that the age of the victim and defendant were not that disparate and that the victim, a 15-year-old girl, told authorities that the sexual intercourse was consensual. Following a hearing, the Criminal Court assessed 120 points against defendant in the risk assessment instrument and designated him a level three sex offender, declining to follow the Board's recommendation to designate defendant a level one offender.
The risk assessment instrument will "result in the proper classification in most cases so that departures will be the exception not the rule. A departure from the presumptive risk level is warranted where there exists an aggravating or mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines" ( People v Foy, 49 AD3d 835, 835, quoting People v O'Neal, 26 AD3d 365, 365). There must be clear and convincing evidence of the existence of a special circumstance warranting a departure therefrom ( see People v Williams, 19 AD3d 388). On appeal, defendant has not argued that the assessment of 120 points was error. Rather, defendant argues that the court below ignored the recommendation of the Board to classify him as a level one offender. However, the Criminal Court was not bound by the recommendation of the Board and, in the exercise of its discretion, it was entitled to depart from that recommendation and determine defendant's risk level based on the record before it ( see People v Walker, 47 AD3d 692, 693-694). We find that the Criminal Court did not improvidently exercise its discretion as defendant failed to prove any mitigating factor or special circumstance which would warrant a downward departure. Accordingly, the order is affirmed.
Pesce, P.J., Golia and Rios, JJ., concur.