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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAMON JACOBS, Appellant.

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

A court is empowered to exercise its discretion and depart from the presumptive risk level determined by the risk assessment instrument based upon the circumstances in the record ( see People v Derrico, 55 AD3d 810, 811; People v Walker, 47 AD3d 692; People v Guaman, 8 AD3d 545). 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, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [Nov. 1997]; see People v Derrico, 55 AD3d 810; People v Walker, 47 AD3d 692). 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 also People v Derrico, 55 AD3d 810, 811; People v Walker, 47 AD3d 692, 693; People v Guaman, 8 AD3d 545). Such a determination must be supported by clear and convincing evidence ( see People v Derrico, 55 AD3d 810; People v Walker, 47 AD3d 692, 693; People v Guaman, 8 AD3d 545).

Here, the defendant failed to demonstrate by clear and convincing evidence that there existed a mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines that warranted a downward departure from his presumptive risk level designation. Thus, the Supreme Court providently exercised its discretion in denying such a departure.

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PEOPLE v. JACOBS
(Apr 21, 2009)