PEOPLE v. BURGOS (2007)

Appeal by the defendant from an order of the Supreme Court, Westchester County (Adler, J.), entered March 22, 2006, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the defendant is reclassified as a level two sex offender.

 Although a court is empowered to exercise its discretion and depart from the presumptive risk level based upon the facts in the record (see People v. Girup, 9 A.D.3d 913, 780 N.Y.S.2d 698;  People v. Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704), it has been recognized that “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’ ” (People v. Guaman, supra, quoting Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [1997 ed.];   see also People v. Agard, 35 A.D.3d 568, 825 N.Y.S.2d 761;  People v. Inghilleri, 21 A.D.3d 404, 799 N.Y.S.2d 793).   Thus, a departure from the presumptive risk level is generally only 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.];   see People v. Agard, supra at 568, 825 N.Y.S.2d 761;  People v. Hegazy, 25 A.D.3d 675, 811 N.Y.S.2d 700;  People v. Inghilleri, supra ).   There must be clear and convincing evidence of a special circumstances to warrant a departure from the presumptive risk level (People v. Agard, supra;  People v. Ventura, 24 A.D.3d 527, 807 N.Y.S.2d 609).

 Here, the court departed from the defendant's presumptive risk level based upon its in camera review of medical records in which there were diagnoses that the defendant was suffering from schizophrenia and a personality disorder.   However, neither the medical records nor the evidence submitted at the hearing demonstrated that these disorders “[are] causally related to any risk of reoffense” (People v. Zehner, 24 A.D.3d 826, 804 N.Y.S.2d 852;  see Correction Law § 168-l[5][a][i];  People v. Perkins, 35 A.D.3d 1167, 826 N.Y.S.2d 875).   Accordingly, the court's upward departure to a level three classification is not supported by clear and convincing evidence of an aggravating factor not adequately taken into account by the risk assessment instrument (see People v. Perkins, supra;  People v. Zehner, supra).