|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.|
|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 ), 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 ). 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 ; People v Bottisti, 285 AD2d 841 ). [*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.