From Casetext: Smarter Legal Research

People v. Bussie

Appellate Division of the Supreme Court of New York, Second Department
Apr 19, 2011
83 A.D.3d 920 (N.Y. App. Div. 2011)

Opinion

No. 2010-05114.

April 19, 2011.

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated April 19, 2010, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), for respondent.

Before: RIVERA, J.P., DICKERSON, LOTT and COHEN, JJ.


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 of the risk assessment instrument, based upon the facts in the record ( see People v Bowens, 55 AD3d 809, 810; People v Taylor, 47 AD3d 907, 907; People v Burgos, 39 AD3d 520, 520; People v Hines, 24 AD3d 524, 525). However, "utilization of the risk assessment instrument will generally `result in the proper classification in most cases so that departures will be the exception not the rule`" ( People v Guaman, 8 AD3d 545, 545, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [Nov. 1997]; see People v Bowens, 55 AD3d at 810; People v Taylor, 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 an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v Bowens, 55 AD3d at 810; People v Taylor, 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's request for a downward departure, as the defendant failed to demonstrate the existence of mitigating circumstances of a kind, or to a degree, not otherwise adequately taken into account by the guidelines ( see People v Mendez, 79 AD3d 834, lv denied 16 NY3d 707; People v Maiello, 32 AD3d 463).


Summaries of

People v. Bussie

Appellate Division of the Supreme Court of New York, Second Department
Apr 19, 2011
83 A.D.3d 920 (N.Y. App. Div. 2011)
Case details for

People v. Bussie

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. QUENTIN L. BUSSIE…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 19, 2011

Citations

83 A.D.3d 920 (N.Y. App. Div. 2011)
2011 N.Y. Slip Op. 3222
920 N.Y.S.2d 718

Citing Cases

People v. Flowers

Ordered that the order is affirmed, without costs or disbursements. "A departure from the presumptive risk…

People v. Brown

The Board of Examiners of Sex Offenders recommended that the defendant be classified as a level three sex…