People v. Foy

“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 ... 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” (People v O’Neal, 26 AD3d 365, 365 [2006]). There must be clear and convincing evidence of the existence of a special circumstance to warrant a departure (see People v Dexter, 21 AD3d 403 [2005]).

Here, the County Court providently exercised its discretion in denying the request for a downward departure based upon the defendant’s contention that his conviction was for statutory rape, as opposed to forcible rape. This factor was already taken into account in the risk assessment instrument, as indicated by the failure to assess points therein for the use of force (see People v Walker, 47 AD3d 692 [2008]).

The defendant’s remaining contention is without merit. Rivera, J.P., Lifson, Florio and Chambers, JJ., concur.