PEOPLE v. COFFEY

Ordered that the order is reversed, on the law, without costs or disbursements, and the defendant is reclassified as a level two sex offender.

Although a court is empowered to exercise its discretion and depart from the presumptive risk level based upon the facts in the record ( see People v Hines, 24 AD3d 524, 525; People v Girup, 9 AD3d 913; People v Guaman, 8 AD3d 545), it has been recognized that "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 [1997 ed]; see People v Burgos, 39 AD3d 520; People v Inghilleri, 21 AD3d 404). A departure from the presumptive risk level is warranted only 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 [1997 ed]; see People v Burgos, 39 AD3d at 520; People v Hegazy, 25 AD3d 675; People v Inghilleri, 21 AD3d at 404; People v Guaman, 8 AD3d 545). There must be clear and convincing evidence of a special circumstance to warrant a departure from the presumptive risk level ( see People v Burgos, 39 AD3d at 520).

Here, the court improperly considered, inter alia, as a factor justifying its upward departure from the defendant's presumptive risk level, a charge that was ultimately dismissed in the underlying criminal action. The court's upward departure to a level three classification, therefore, is not supported by clear and convincing evidence of an aggravating factor not adequately taken into account by the risk assessment instrument ( see People v Burgos, 39 AD3d at 520; People v Fuller, 37 AD3d 689; People v Ruddy, 31 AD3d 517; People v Hegazy, 25 AD3d at 675; People v Inghilleri, 21 AD3d 404; People v Guaman, 8 AD3d at 545). Accordingly, the defendant must be reclassified as a level two sex offender.