Opinion
No. 2005-10934.
September 9, 2008.
Appeal by the defendant from an order of the County Court, Dutchess County (Dolan, J.), dated November 4, 2005, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
David Goodman, Poughkeepsie, N.Y. (Steven Levine of counsel), for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller of counsel), for respondent.
Before: Rivera, J.P., Lifson, Santucci and Miller, JJ.
Ordered that the order is affirmed, without costs or disbursements.
Pursuant to the Sex Offender Registration Act (Correction Law art 6-C), a hearing court has the discretion to depart from the presumptive risk level determined by the risk assessment instrument ( see People v Hines, 24 AD3d 524, 525; People v Girup, 9 AD3d 913; People v Guaman, 8 AD3d 545). However, "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 AD3d 545, 545, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [Nov. 1997]; see People v Ventura, 24 AD3d 527; People v Hines, 24 AD3d 524, 525; People v Dexter, 21 AD3d 403, 404). 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" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]; see People v White, 25 AD3d 677; People v Guaman, 8 AD3d 545).
Here, the County Court providently exercised its discretion in departing from the presumptive risk level and designating the defendant a level three sex offender ( see People v Hands, 37 AD3d 441, 442). In this regard, the County Court properly considered, inter alia, the defendant's prior extensive criminal history and his parole violations ( see People v Kettles, 39 AD3d 1270, 1271).
The defendant's remaining contention is without merit. Rivera, J.P., Lifson, Santucci and Miller, JJ., concur.