Opinion
570597/03, 04-064.
Decided November 15, 2005.
Defendant appeals from (1) a judgment of the Criminal Court, New York County (Ruth Pickholz, J. at suppression hearing; A. Kirke Bartley, Jr., J. at plea and sentence), rendered June 13, 2003, convicting him, upon a guilty plea, of sexual abuse in the third degree (Penal Law § 130.55) and violation of probation on a previously entered plea of guilty to endangering the welfare of a child (Penal Law § 260.10), and imposing sentence, and (2) an order, same court, dated May 13, 2004 (A. Kirke Bartley, J.) which adjudicated him a level-three sex offender under the Sex Offender Registration Act (Correction Law Art. 6-C).
Judgment of conviction (Ruth Pickholz, J. at suppression hearing; A. Kirke Bartley, Jr., J. at plea and sentence) rendered June 13, 2003 affirmed. Order (A. Kirke Bartley, Jr., J.) dated May 13, 2004 modified, on the law, the facts and in the exercise of discretion, defendant adjudicated a level two sex offender, and as modified, affirmed, without costs.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM P. McCOOE, HON. PHYLLIS GANGEL-JACOB, Justices.
Defendant's suppression motion was properly denied. There is no basis upon which to disturb the court's credibility determinations, which are supported by the record ( see People v. Prochilo, 41 NY2d 759, 761). The police had reasonable suspicion justifying a temporary investigative detention of defendant for prompt identification on the basis of a sufficiently specific description provided by the complainant, where defendant, who met the description, was found in close temporal and spatial proximity to the crime and in a location consistent with his flight path ( People v. Brown, 14 AD3d 356, lv denied 4 NY3d 852; People v. Nation, 13 AD3d 128, lv denied 4 NY3d 855).
The court erred, however, in designating defendant a level three sex offender. Although a court is empowered to exercise its discretion and depart from the presumptive risk level determined by the Risk Assessment Instrument (RAI) based upon facts in the record, utilization of the RAI "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, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]). A departure from the presumptive risk level is warranted only where "there exists an aggravating or mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines" ( id.).
While defendant's presumptive risk level under the RAI was properly determined to be a level two risk, we find that the record did not support the Board's recommended upward departure to a level three risk since it did not demonstrate that there were additional aggravating factors, not already taken into account by the risk assessment guidelines, which would warrant designating defendant as a level three offender. Accordingly, defendant is adjudicated a level two sex offender ( see People v. Mount, 17 AD3d 714; People v. Fisher, AD3d [2005], 2005 NY Slip Op 07787).
This constitutes the decision and order of the court.
I concur