PEOPLE v. ABDUL-QAWIYY

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

A departure from the presumptive risk level is warranted where "there exists an aggravating or mitigating factor of a kind or to a degree, not otherwise adequately taken into account by the guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006 ed]; see People v White, 25 AD3d 677; People v Guaman, 8 AD3d 545). Further, there must be clear and convincing evidence of the existence of a special circumstance to warrant any departure ( see People v Dexter, 21 AD3d 403, 404). Here, the Supreme Court's determination to depart from the presumptive risk level and designate the defendant a level three sex offender was proper ( see People v James, 45 AD3d 555, 556; People v Buss, 44 AD3d 634, 635; People v Mudd, 43 AD3d 1128, 1129, lv denied 9 NY3d 817; People v Kettles, 39 AD3d 1270, 1271; People v Wilkens, 33 AD3d 399; People v White, 25 AD3d 677).