PEOPLE v. HANDS (2007)

Appeal by the defendant from an order of the County Court, Suffolk County (Braslow, J.), dated August 8, 2005, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

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

 A departure from the presumptive risk level recommended by the New York State Board of Examiners of Sex Offenders (hereinafter the Board) 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' ” (People v. Dexter, 21 A.D.3d 403, 404, 799 N.Y.S.2d 807, quoting Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary, at 4 [1997 ed.] ).   The court's finding in this regard must be supported by clear and convincing evidence (see People v. Dexter, supra at 404, 799 N.Y.S.2d 807;  People v. Valentine, 15 A.D.3d 463, 789 N.Y.S.2d 430;  People v. Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704;  People v. Hampton, 300 A.D.2d 641, 751 N.Y.S.2d 428;  Correction Law § 168-n[3] ).

 Here, contrary to the defendant's contention, the hearing testimony as well as the Board's case summary provided clear and convincing evidence that aggravating factors existed which were not fully taken into account by the Risk Assessment Instrument.   Accordingly, the County Court providently exercised its discretion in making an upward departure from the presumptive level two adjudication (see People v. Thompson, 31 A.D.3d 409, 818 N.Y.S.2d 240;   People v. White, 25 A.D.3d 677, 811 N.Y.S.2d 699;  People v. Forney, 28 A.D.3d 446, 812 N.Y.S.2d 143;  People v. Dexter, supra;  People v. Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704).

The defendant's remaining contentions are without merit.