PEOPLE v. MOUNT (2005)

Appeal from an order of the County Court of Saratoga County (Scarano Jr., J.), entered March 18, 2004, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

 In anticipation of his release after serving a five-year prison sentence for a conviction of sexual abuse in the first degree and assault in the second degree, defendant was evaluated and presumptively classified as a risk level II sex offender pursuant to the Sex Offender Registration Act (see Correction Law art. 6-C).   After a hearing, County Court accepted the recommendation of the Board of Examiners of Sex Offenders that an upward departure to risk level III offender status was warranted and classified defendant as such.

 An upward departure from the presumptive risk level is warranted when, “after consideration of the indicated factors ․'there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines' ” (Matter of O'Brien v. State of New York Div. of Probation & Correctional Servs., 263 A.D.2d 804, 805-806, 693 N.Y.S.2d 735 [1999], lv. denied 94 N.Y.2d 758, 704 N.Y.S.2d 532, 725 N.E.2d 1094 [1999] [citation omitted] ).   Furthermore, such a determination must be “supported by clear and convincing evidence in the record” (People v. Bottisti, 285 A.D.2d 841, 841-842, 727 N.Y.S.2d 787 [2001];  see Correction Law § 168-n [3] ).   Here, it was determined that an upward departure was indicated due to defendant's prior conviction of sexual misconduct and his history of alcohol and substance abuse.   However, the record reveals that defendant had already been assessed the maximum number of points in those categories on the risk assessment instrument.

Inasmuch as the factors that County Court relied upon to justify the upward departure from the presumptive risk level were adequately taken into account by the risk assessment instrument, under the particular circumstances herein, we conclude that the departure was not supported by clear and convincing evidence (see People v. Hoppe, 12 A.D.3d 792, 793-794, 784 N.Y.S.2d 220 [2004];  People v. Mallory, 293 A.D.2d 881, 882, 740 N.Y.S.2d 530 [2002];  Matter of Vandover v. Czajka, 276 A.D.2d 945, 947, 714 N.Y.S.2d 793 [2000];  cf. People v. Guaman, 8 A.D.3d 545, 545, 778 N.Y.S.2d 704 [2004] ).

ORDERED that the order is reversed, on the law, without costs, and defendant is classified as a risk level II sex offender under the Sex Offender Registration Act.

CARDONA, P.J.

MERCURE, PETERS, SPAIN and CARPINELLO, JJ., concur.