People v. Abdul-Qawiyy , 852 N.Y.2d 846 ( 2008 )

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 [2006]; People v Guaman, 8 AD3d 545 [2004]). 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 [2005]). 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 [2007]; People v Buss, 44 AD3d 634, 635 [2007]; People v Mudd, 43 AD3d 1128, 1129 [2007], lv denied 9 NY3d 817 [2008]; People v Kettles, 39 AD3d 1270, 1271 [2007]; People v Wilkens, 33 AD3d 399 [2006]; People v White, 25 AD3d 677 [2006]). Rivera, J.P., Skelos, Santucci and Leventhal, JJ., concur.