Opinion
2007-1667 W C.
Decided on May 11, 2009.
Appeal from an order of the City Court of Yonkers, Westchester County (Charles D. Wood, J.), dated September 17, 2007. The order, after a hearing, designated defendant a level three sex offender pursuant to Correction Law article 6-C.
Order affirmed without costs.
PRESENT: MOLIA, J.P., SCHEINKMAN and LaCAVA, JJ.
Defendant was convicted, upon his plea of guilty, of sexual misconduct (Penal Law § 130.20). After a hearing, defendant was classified as a level three sex offender pursuant to Correction Law article 6-C.
In determining an offender's presumptive risk level under the Sex Offender Registration Act (Correction Law article 6-C), utilization of the risk assessment instrument will generally result in a proper classification so that a departure therefrom will be an exception, not the rule ( see People v Guaman, 8 AD3d 545). "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 Inghilleri, 21 AD3d 404, 405-406, quoting Sex Offenders Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]). There must be clear and convincing evidence of the existence of special circumstances to warrant an upward or downward departure ( Guaman, 8 AD3d at 545).
Contrary to defendant's contention, the Board of Examiners' case summary and the victim's statement provided clear and convincing evidence that aggravating factors existed which were not fully taken into account by the guidelines, and which supported the Board's recommendation that an upward departure to a level three designation was warranted. The totality of the circumstances and defendant's actions relating to his repetitious conduct and his inability to appreciate and acknowledge the ramifications of his behavior, as well as defendant's complete lack of remorse, were of a kind or of a degree not taken into consideration by the guidelines and warranted a finding that there was a high risk that defendant will re-offend. Accordingly, the City Court providently exercised its discretion in making an upward departure from the presumptive level two designation, as determined by defendant's score, to a level three designation (Correction Law § 168- l [c]; People v Gandy, 35 AD3d 1163).
Molia, J.P. and Scheinkman, J., concur.
LaCava, J., dissents in a separate memorandum.
LaCava, J., dissents and votes to reverse the order and reclassify defendant as a level two sex offender, in the following memorandum:
In my view, the City Court improvidently exercised its discretion in upwardly departing from defendant's presumptive risk level two sex offender status and designating him a risk level three sex offender. The People failed to demonstrate by clear and convincing evidence the existence of an aggravating factor of a kind or to a degree not otherwise taken into account by the guidelines so as to warrant such an upward departure ( see People v Inghilleri, 21 AD3d 404, 405-406; People v Mount, 17 AD3d 714, 715; People v Girup, 9 AD3d 913; People v Guaman, 8 AD3d 545). Indeed, the factors enunciated by the majority were accounted for in the guidelines. Accordingly, the order should be reversed and defendant reclassified as a level two sex offender.