Opinion
2003-06987.
December 12, 2005.
Appeal by the defendant from an order of the County Court, Nassau County (LaPera, J.), dated June 30, 2003, which, after a hearing pursuant to Correction Law article 6-C, designated him a level two sex offender.
Before: Crane, J.P., Mastro, Fisher and Lunn, JJ., concur.
Ordered that the order is affirmed.
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. Inghilleri, 21 AD3d 404, 405; People v. Girup, 9 AD3d 913; 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, supra at 545, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]). "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 taken into account by the guidelines'" ( People v. Inghilleri, supra at 406, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]; see People v. Mount, 17 AD3d 714, 715; People v. Girup, supra; People v. Guaman, supra).
Contrary to the defendant's contention, the County Court properly relied on the statements in the case summary and probation report that the sexual offense occurred over a four-hour period as the basis for designating him a level two sex offender ( see People v. Mitchell, 300 AD2d 377; People v. Dorato, 291 AD2d 580; People v. Scott, 288 AD2d 763). "Correction Law § 168-n (3) specifically authorizes a hearing court to utilize reliable hearsay evidence in reaching its determination" ( People v. Brown, 7 AD3d 595, 595). That the statements at issue may have constituted double hearsay did not necessarily render them unreliable for purposes of a Sex Offender Registration Act hearing. Since the County Court's determination was supported by clear and convincing evidence, it will not be disturbed on appeal.