People v. Colavito

• Decision Date: 18 May 2010
• Citation: 73 A.D.3d 1004,900 N.Y.S.2d 675
• Parties: PEOPLE of State of New York, respondent, v. Michael COLAVITO, appellant.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 675

73 A.D.3d 1004

PEOPLE of State of New York, respondent,

v.Michael COLAVITO, appellant.

Supreme Court, Appellate Division, Second Department, New York.

May 18, 2010.

Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant.

Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Michael Shollar of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated August 29, 2008, which, after a hearing to redetermine the defendant's sex offender risk level pursuant to the stipulation of settlement in Doe v. Pataki, F.Supp.2d 456, designated him a level two sex offender pursuant to Correction Law article 6-C.

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

A court has the discretion to depart from the presumptive risk level, as determined by use of the risk assessment instrument, based upon the facts in the record ( see People v. Bowens, 55 A.D.3d 809, 810, 866 N.Y.S.2d 291; People v. Taylor, 47 A.D.3d 907, 907, 850 N.Y.S.2d 195; People v. Burgos, 39 A.D.3d 520, 520, 834 N.Y.S.2d 224; People v. Hines, 24 A.D.3d 524, 525, 807 N.Y.S.2d 608). 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 A.D.3d 545, 545, 778 N.Y.S.2d 704, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]; see People v. Bowens, 55 A.D.3d at 810, 866 N.Y.S.2d 291; People v. Taylor, 47 A.D.3d at 908, 850 N.Y.S.2d 195; People v. Burgos, 39 A.D.3d at 520, 834 N.Y.S.2d 224; People v. Hines, 24 A.D.3d at 525, 807 N.Y.S.2d 608). 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 ed]; see People v. Bowens, 55 A.D.3d at 810, 866 N.Y.S.2d 291; People v. Taylor, 47 A.D.3d at 908, 850 N.Y.S.2d 195; People v. Burgos, 39 A.D.3d at 520, 834 N.Y.S.2d 224; People v. Hines, 24 A.D.3d at 525, 807 N.Y.S.2d 608). Further, there must beclear and convincing evidence of the existence of a special circumstance to warrant such a departure ( see People v. Bowens, 55 A.D.3d at 810, 866 N.Y.S.2d 291; People v. Burgos, 39 A.D.3d at 520, 834 N.Y.S.2d 224; People v. Agard, 35 A.D.3d 568, 568, 825 N.Y.S.2d 761; People v. Ventura, 24 A.D.3d 527, 527, 807 N.Y.S.2d 609; People v. Dexter, 21 A.D.3d 403, 404, 799 N.Y.S.2d 807).

Here, the Supreme Court providently exercised its discretion in denying the defendant's request for a downward departure, as the defendant failed to present clear and convincing evidence of special circumstances warranting such a departure ( see People v. Bowens, 55 A.D.3d at 810, 866 N.Y.S.2d 291; People v. Taylor, 47 A.D.3d at 908, 850 N.Y.S.2d 195; see also People v. Wragg, 41 A.D.3d 1273, 1274, 838 N.Y.S.2d 755; People v. Santos, 25 Misc.3d 1212(A), 2009 N.Y. Slip Op. 52040(U), 2009 WL 3254563; cf. People v. Stevens, 55 A.D.3d 892, 867 N.Y.S.2d 108).

COVELLO, J.P., DICKERSON, ENG and AUSTIN, JJ.,...