Opinion
No. 2010-06398.
June 14, 2011.
Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.), dated February 24, 2009, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.
Lynn W. L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Gamaliel Marrero on the brief), for respondent.
Before: Mastro, J.P., Angiolillo, Chambers and Cohen, JJ.
Ordered that the order is affirmed, without costs or disbursements.
"[U]tilization 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, 545, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [Nov. 1997]; see People v Martin, 79 AD3d 717). However, "an objective instrument, no matter how well designed, will not fully capture the nuances of every case" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]). An upward departure from the presumptive risk level is warranted where "there exists an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines" ( id.; see People v Lee, 77 AD3d 897, 898; People v Bowens, 55 AD3d 809, 810).
Here, the People presented evidence, including the defendant's own admission, establishing that he intended to rape the victim, but his attempt was thwarted by a police officer who heard the victim screaming for help. This was an aggravating factor of a kind, or to a degree, otherwise not adequately taken into account by the guidelines. Since the rape was not completed, the defendant was assessed only 10 points under factor 2 for touching that occurred under the clothing, and not 25 points for sexual intercourse. As a result, the defendant's total assessment was 65 points, placing him at level one. However, it is "evident that [the defendant] intended to rape his victim, [and] that the lack of points in this category result[ed] in an under-assessment of the [defendant's] actual risk to public safety" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 9 [2006]; see People v Mudd, 43 AD3d 1128, 1129). Accordingly, the Supreme Court providently exercised its discretion in upwardly departing from level one to level two ( see People v Mudd, 43 AD3d at 1129).
The defendant's remaining contentions are academic.