PEOPLE v. HAYWARD (2008)

 Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).   The Board of Examiners of Sex Offenders (Board) recommended an upward departure from defendant's presumptive classification as a level two risk based on the total risk factor score on the risk assessment instrument (RAI).   We agree with defendant that County Court erred in agreeing with the Board's recommendation inasmuch as the upward departure is not supported by the requisite clear and convincing evidence (see People v. Mount, 17 A.D.3d 714, 792 N.Y.S.2d 697).   Although a court may in the exercise of its discretion depart from the presumptive risk level determined by the RAI based upon the facts in the record (see People v. Girup, 9 A.D.3d 913, 780 N.Y.S.2d 698), the “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 A.D.3d 545, 778 N.Y.S.2d 704, quoting Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary, at 4 [Nov. 1997] ).  “A[n upward] departure from the presumptive risk level is warranted where ‘there exists an aggravating ․ factor of a kind or to a degree not otherwise taken into account by the [risk assessment] guidelines ’ ” (People v. Inghilleri, 21 A.D.3d 404, 406, 799 N.Y.S.2d 793 [emphasis added], quoting Risk Assessment Guidelines and Commentary, at 4;  see Mount, 17 A.D.3d 714, 792 N.Y.S.2d 697;  Girup, 9 A.D.3d at 913, 780 N.Y.S.2d 698;  Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704) and, here, there was no evidence of such an aggravating factor (see Mount, 17 A.D.3d 714, 792 N.Y.S.2d 697).   We therefore modify the order accordingly.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by determining that defendant is a level two risk pursuant to the Sex Offender Registration Act and as modified the order is affirmed without costs.

MEMORANDUM: