PEOPLE v. DAVIS

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

In establishing the appropriate risk level determination under the Sex Offender Registration Act (Correction Law art 6-C), the People bear the burden of proving the necessary facts by clear and convincing evidence ( see Correction Law § 168-n; People v Lawless, 44 AD3d 738).

A court, in the exercise of its discretion, may depart from the presumptive risk level determined by the risk assessment instrument based upon the facts in the record ( see People v Taylor, 47 AD3d 907; People v Inghilleri, 21 AD3d 404, 405). However, "[t]he expectation is that the [risk assessment] instrument will result in the proper classification in most cases so that departures will be the exception — not the rule" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]). 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 Taylor, 47 AD3d 907, 908).

Here, the court considered the risk assessment instrument, the case summary, and the victim's out-of-court statements to the prosecutor in establishing that the victim sustained a serious physical injury in the form of a broken vertebra, which caused pain and difficulty walking for a period of two years. Thus, the Supreme Court properly determined that there was clear and convincing evidence to support upward departure from the presumptive level two sex offender designation.