PEOPLE v. FORNEY (2006)

Appeal by the defendant from an order of the Supreme Court, Kings County (Chambers, J.), dated October 17, 2003, which, pursuant to Correction Law article 6-C, designated him a level three sex offender.

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

 The Supreme Court failed to set forth “the findings of fact and conclusions of law” upon which its risk assessment determination was made, as required by Correction Law § 168-n(3).   However, this court may make its own findings of fact and conclusions of law, where, as here, the record is sufficient to do so (see People v. Villane, 17 A.D.3d 336, 793 N.Y.S.2d 90).

 The prosecution presented clear and convincing evidence to support the upward departure from a presumptive level two classification to the level three classification recommended by the New York State Board of Examiners of Sex Offenders (hereinafter the Board).   Although “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. Ventura, 24 A.D.3d 527, 807 N.Y.S.2d 609, quoting Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [1997 ed.];   see People v. Hines, 24 A.D.3d 524, 807 N.Y.S.2d 608;  People v. Dexter, 21 A.D.3d 403, 799 N.Y.S.2d 807), a departure from the presumptive risk level is warranted where an aggravating factor exists which is “not otherwise taken into account by the guidelines” (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary, at 4 [1997 ed.];   see People v. Ventura, supra;  People v. Hines, supra;  People v. Dexter, supra ).   Contrary to the defendant's contention, the evidence presented at the hearing, which included the case summary prepared by the Board, provided clear and convincing evidence that an aggravating factor exists in this case which was not fully taken into account by the Risk Assessment Instrument (see People v. O'Flaherty, 23 A.D.3d 237, 806 N.Y.S.2d 11;  People v. Sanford, 16 A.D.3d 1082, 790 N.Y.S.2d 792).   Thus, an upward departure was warranted.

The defendant's remaining contention is without merit.