It is hereby ordered that the order so appealed from is unanimously modified in the exercise of discretion by determining that defendant is a level two risk pursuant to the Sex Offender Registration Act and as modified the order is affirmed without costs.
Memorandum:
We agree with defendant that County Court improvidently exercised its discretion in determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). We therefore "substitute [our] own discretion even in the absence of an abuse" by the court ( Matter of Von Bulow, 63 NY2d 221, 224), and we modify the order by determining that defendant is a level two risk. Although defendant was presumptively classified as a level three risk pursuant to the risk assessment instrument, we conclude based on the record before us that there is "clear and convincing evidence of the existence of special circumstance[s] to warrant [a] . . . downward departure" from the presumptive risk level ( People v Guaman, 8 AD3d 545). Defendant, who was 21 years old at the time of the underlying offense, engaged in sexual activity with a 15-year-old female. The court found that the victim was a willing participant in the sexual activity and that she had been supportive of defendant throughout the proceedings ( see People v Brewer, 63 AD3d 1604; People v Weatherley, 41 AD3d 1238). Indeed, "[t]here was no allegation or evidence of forcible compulsion" ( Brewer, 63 AD3d at 1605). Moreover, the underlying conviction was defendant's first felony conviction. Although defendant had previously been convicted of a misdemeanor sex offense, that offense involved the same victim, who is defendant's girlfriend. We thus conclude under the circumstances of this case that defendant did not have a high risk of reoffending ( see Correction Law § 168- l; Brewer, 63 AD3d 1604; cf. People v Heichel, 20 AD3d 934, 935). In light of our determination, we do not address defendant's remaining contentions.