Opinion
No. 2006-09067.
March 11, 2008.
Appeal by the defendant from an order of the Supreme Court, Queens County (Wong, J.), dated September 11, 2006, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
Lynn W. L. Fahey, New York, N.Y. (William Kastin of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Aisha S. Greene of counsel), for respondent.
Before: Skelos, J.P., Fisher, Covello and Eng, JJ.
Ordered that the order is affirmed, without costs or disbursements.
Although departures from the presumptive risk level determined by the risk assessment instrument are the exception rather than the rule, a departure is warranted where clear and convincing evidence demonstrates the existence of an aggravating or mitigating factor that in kind or degree is not otherwise taken into account by the risk assessment guidelines ( see People v Thompson, 31 AD3d 409; People v Forney, 28 AD3d 446, 447; People v White, 25 AD3d 677). Contrary to the defendant's contention, the Supreme Court's determination to depart from the presumptive risk level and designate him a level three sex offender was supported by clear and convincing evidence based, inter alia, on the case summary prepared by the Board of Examiners of Sex Offenders, the defendant's statements to the police, and the victims' statements ( see People v Leibach, 39 AD3d 1093, 1093-1094; People v Allen, 24 AD3d 979, 980).