PEOPLE v. COFFEY (2007)

Appeal by the defendant from an order of the County Court, Suffolk County (Braslow, J.), dated January 11, 2005, 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. Hines, 24 A.D.3d 524, 525, 807 N.Y.S.2d 608;  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, 8 A.D.3d 545, 778 N.Y.S.2d 704, quoting Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [1997 ed.];   see People v. Burgos, 39 A.D.3d 520, 834 N.Y.S.2d 224;  People v. Inghilleri, 21 A.D.3d 404, 799 N.Y.S.2d 793).   A departure from the presumptive risk level is warranted only 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. Burgos, 39 A.D.3d at 520, 834 N.Y.S.2d 224;  People v. Hegazy, 25 A.D.3d 675, 811 N.Y.S.2d 700;  People v. Inghilleri, 21 A.D.3d at 404, 799 N.Y.S.2d 793;  People v. Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704).   There must be clear and convincing evidence of a special circumstance to warrant a departure from the presumptive risk level (see People v. Burgos, 39 A.D.3d at 520, 834 N.Y.S.2d 224).

 Here, the court improperly considered, inter alia, as a factor justifying its upward departure from the defendant's presumptive risk level, a charge that was ultimately dismissed in the underlying criminal action.   The court's upward departure to a level three classification, therefore, 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. Burgos, 39 A.D.3d at 520, 834 N.Y.S.2d 224;  People v. Fuller, 37 A.D.3d 689, 828 N.Y.S.2d 909;  People v. Ruddy, 31 A.D.3d 517, 818 N.Y.S.2d 271;  People v. Hegazy, 25 A.D.3d at 675, 811 N.Y.S.2d 700;  People v. Inghilleri, 21 A.D.3d 404, 799 N.Y.S.2d 793;  People v. Guaman, 8 A.D.3d at 545, 778 N.Y.S.2d 704).   Accordingly, the defendant must be reclassified as a level two sex offender.