People v. Fabara

49 A.D.3d 619, 852 N.Y.2d 781

Opinion

Although departures from the presumptive risk level determined by the risk assessment instrument are the exception rather than the rule, a departure is warranted where clear and convincing evidence demonstrates the existence of an aggravating or mitigating factor that in kind or degree is not otherwise taken into account by the risk assessment guidelines (see People v Thompson, 31 AD3d 409 [2006]; People v Forney, 28 AD3d 446, 447 [2006]; People v White, 25 AD3d 677 [2006]). Contrary to the defendant’s contention, the Supreme Court’s determination to depart from the presumptive risk level and designate him a level three sex offender was supported by clear and convincing evidence based, inter alia, on the case summary prepared by the Board of Examiners of Sex Offenders, the defendant’s statements to the police, and the victims’ statements (see People v Leibach, 39 AD3d 1093, 1093-1094 [2007]; People v Allen, 24 AD3d 979, 980 [2005]). Skelos, J.P., Fisher, Covello and Eng, JJ., concur.