People v Guaman
2004 NY Slip Op 05427 [8 AD3d 545]
June 21, 2004
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, August 25, 2004

People v Guaman8 AD3d ?
The People of the State of New York, Respondent,
Javier L. Guaman, Appellant.

[*1]Appeal by the defendant from an order of the Supreme Court, Westchester County (DiFiore, J.), dated April 3, 2003, which, after a hearing pursuant to Correction Law article 6-C, designated him a level II sex offender.

Ordered that the order is affirmed, without costs or disbursements.

The defendant pleaded guilty to rape in the second degree and was assigned a presumptive risk level II sex offender designation (see Correction Law § 168-l). He contends that the court should have exercised its discretion and departed from this designation down to a risk level I (see Correction Law § 168-m).

Although a court is empowered to exercise its discretion and depart from the presumptive risk level based upon the facts in the record (see Matter of Vandover v Czajka, 276 AD2d 945 [2000]), 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 Terdeman, 175 Misc 2d 379 [1997]). 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 adequately taken into account by the guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]). There must exist clear and convincing evidence of the existence of special circumstance to warrant an upward or downward departure (see People v Hampton, 300 AD2d 641 [2002]; People v Bottisti, 285 AD2d 841 [2001]). [*2]

The factors alleged by the defendant do not warrant a departure. Accordingly, the court providently exercised its discretion in designating the defendant a level II sex offender (see Correction Law § 168-m).

The defendant's remaining contention is unpreserved for appellate review. Santucci, J.P., Schmidt, Rivera and Lifson, JJ., concur.