PEOPLE v. MOTHERSELL (2006)

Appeal from an order of the County Court of Schenectady County (Giardino, J.), rendered January 26, 2005, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty to rape in the second degree, attempted rape in the second degree and attempted sodomy in the second degree and was sentenced to 4 to 13 years in prison.   After violating probation, defendant was then resentenced to two years in prison.   Prior to his release, the Board of Examiners of Sex Offenders evaluated and classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act (see Correction Law art. 6-C).   Following a risk assessment hearing, County Court adopted the Board's recommendation and classified defendant as a presumptive risk level III sex offender.   Defendant now appeals, contending that a downward departure is warranted.

 “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' ” (People v. Guaman, 8 A.D.3d 545, 545, 778 N.Y.S.2d 704 [2004], quoting Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary, at 4 [Nov. 1997];  accord People v. McCormick, 21 A.D.3d 1221, 1222, 801 N.Y.S.2d 432 [2005] ).   Special factors warranting a downward departure are to be determined by County Court in its sound discretion and must be supported by clear and convincing evidence (see People v. McCormick, supra at 1222, 801 N.Y.S.2d 432).   Here, the record reveals that County Court considered defendant's age, physical health and criminal history in making the classification and found that these factors did not warrant a downward departure from the presumptive risk level.   Inasmuch as we are unable to conclude that County Court abused its discretion, we decline to disturb the determination (see People v. Ashley, 19 A.D.3d 882, 883, 797 N.Y.S.2d 623 [2005] ).

ORDERED that the order is affirmed, without costs.

PETERS, J.

CARDONA, P.J., CREW III, LAHTINEN and ROSE, JJ., concur.