People v. Arciola

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. 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 [2005]; People v Girup, 9 AD3d 913 [2004]; People v Guaman, 8 AD3d 545 [2004] ). 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 [2004], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [Nov. 1997]; see People v Ventura, 24 AD3d 527 [2005] ; People v Hines, 24 AD3d 524, 525 [2005]; People v Dexter, 21 AD3d 403, 404 [2005]). 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 [2006]; People v Guaman, 8 AD3d 545 [2004]). 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 [2007]). 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 [2007]). The defendant’s remaining contention is without merit. Rivera, J.E, Lifson, Santucci and Miller, JJ., concur.