Opinion
2003-04263.
June 6, 2005.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.) dated April 8, 2003, which, after a hearing pursuant to Correction Law article 6-C, designated him a level three sex offender.
Lynn W. L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant.
Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Karen F. McGee and Anne Crick of counsel), for respondent.
Before: Schmidt, J.P., S. Miller, Santucci and Mastro, JJ., concur.
Ordered that the order is affirmed, without costs or disbursements.
The defendant, who pleaded guilty to rape in the second degree and was assigned a presumptive risk level three sex offender designation ( see Correction Law § 168- l), argues that the court should have exercised its discretion and departed from this designation down to a risk level two ( see Correction Law § 168-m). We disagree.
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" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]; see People v. Guaman, 8 AD3d 545; People v. Terdeman, 175 Misc 2d 379). 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 adequately taken into account by the guidelines" (Guidelines, Commentary at 4). There must exist clear and convincing evidence of the existence of a special circumstance to warrant any departure ( see People v. Valentine, 15 AD3d 463; People v. Guaman, supra; People v. Hampton, 300 AD2d 641; People v. Bottisti, 285 AD2d 841).
The defendant failed to prove any such mitigating factor or special circumstance which would warrant a downward departure. Accordingly, the court providently exercised its discretion in designating the defendant a level three sex offender ( see Correction Law § 168-m).
The defendant's remaining contention is without merit.