People v. Flowers

86 A.D.3d 535, 926 N.Y.2d 323

Opinion

“A departure from the presumptive risk level is warranted where ‘there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines’ ” (People v Bussie, 83 AD3d 920, 920 [2011], Iv denied 17 NY3d 704 [2011], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]). The Supreme Court properly determined that the defendant was not entitled to a downward departure and thus, properly designated the defendant a level three sex offender (see People v Bussie, 83 AD3d 920 [2011]; People v Mendez, 79 AD3d 834 [2010]). Contrary to the defendant’s contention, the fact that he was assigned 20 points under risk factor 5 (victim was 11 through 16 years of age), when the victim of his sexual assault was close to the age of 17, did not result in an overassessment of the risk he posed to public safety. Prudenti, P.J., Angiolillo, Dickerson and Roman, JJ., concur.