People v. Taylor
| Decision Date | 30 November 2010 |
| Citation | 78 A.D.3d 1141,911 N.Y.S.2d 665 |
| Parties | PEOPLE of State of New York, respondent, v. Jay TAYLOR, appellant. |
| Court | New York Supreme Court — Appellate Division |
Lynn W.L. Fahey, New York, N.Y. (Erin R. Collins of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Adam M. Koelsch of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Del Giudice, J.), dated September 22, 2009, 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.
Although departures from the presumptive risk level determined by the risk assessment instrument are the exception rather than the rule ( see People v. Dexter, 21 A.D.3d 403, 404, 799 N.Y.S.2d 807; People v. Bowens, 55 A.D.3d 809, 866 N.Y.S.2d 291; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006 ed.] ), "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 guidelines" ( People v. White, 25 A.D.3d 677, 677, 811 N.Y.S.2d 699; see People v. Bowens, 55 A.D.3d 809, 866 N.Y.S.2d 291; People v. Dexter, 21 A.D.3d at 404, 799 N.Y.S.2d 807; People v. Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006 ed.] ). Here, the Supreme Court's determination to depart from the presumptive risk level and designate the defendant a level three sex offender was not an improvident exercise of discretion ( see People v. Abdul-Qawiyy, 49 A.D.3d 703, 852 N.Y.S.2d 846; People v. Dexter, 21 A.D.3d at 404, 799 N.Y.S.2d 807; People v. White, 25 A.D.3d 677, 811 N.Y.S.2d 699).
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