Appeal from an order of the District Court of Suffolk County, First District (William J. Burke, J.), dated November 4, 2005. The order, following a hearing, amended a prior order, designating defendant a level one sex offender, by designating defendant a level two sex offender.

Order reversed without costs, and defendant reclassified as a level one sex offender.

The procedure to be followed regarding the classification of sex offenders in custody is set forth in section 168-l (6) of the Correction Law. Initially, the Department of Correctional Services is required to notify the Board of Examiners of Sex Offenders when an offender is about to be released. The Board is then required to assess the offender's risk and, within 60 days prior to said offender's release, provide the sentencing court with a recommendation as to the offender's status and risk level (Correction Law § 168-l [6]). The sentencing court, in accordance with the procedure set forth in section 168-n, then renders a decision as to said offender's status and risk level.

In the case at bar, it is uncontroverted that at sentencing, pursuant to the People's recommendation, the court classified defendant as a level one sex offender without having received a report from the Board of Examiners. In doing so, the court failed to assess an additional 15 points required by the Risk Assessment Instrument where, as here, a sex offender is to be released without supervision. The addition of said assessment places defendant in a level two classification according to the risk assessment instrument, which level conformed with the subsequent recommendation by the Board of Examiners. After the Board of Examiners prepared its report in anticipation of defendant's release, the People became aware of the error in the calculation of defendant's risk assessment and the impropriety of the procedure under which defendant had been assessed. The People sought relief by requesting that the court reconsider its prior determination based on the court's failure to follow the procedure required by law [*2](Correction Law § 168-l [8]). Since the proceedings to determine risk level classifications have been treated as civil, rather than criminal, in nature, the court was authorized to reconsider its prior determination (see CPLR 2221; People v Wroton, 286 AD2d 189, 195-196 [2001], lv denied 97 NY2d 610 [2002]).

Although utilization of the point system set forth on the Risk Assessment Instrument will generally result in the proper classification (see People v Dexter, 21 AD3d 403, 404 [2005], lv denied 5 NY3d 716 [2005]), 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 (see People v Abdullah, 31 AD3d 515 [2006]). There must be clear and convincing evidence of the existence of a special circumstance to warrant a departure from the presumptive risk level (see People v Inghilleri, 21 AD3d 404 [2005]; People v Guaman, 8 AD3d 545 [2004]).

Here, there is convincing evidence to warrant a departure. Defendant, who has a bipolar affective disorder, was, at the time of the incident, homeless and not on any medication. Since his release, defendant has been taking medication, attending counseling on a regular basis, and living in suitable housing accommodations. In addition, even though the sincerity of defendant's statements at the time of sentencing was rejected by the court as well as the Board of Examiners, his words indicate remorse for his actions and acceptance of responsibility. In view of the foregoing, and since this was the only sexual offense that has been charged against defendant, it was an improvident exercise of discretion to deny defendant a departure from the
presumptive risk level (see People v Abdullah, 31 AD3d 515, supra; see also People v Galligan, 35 AD3d 691 [2006]). Thus, defendant should be reclassified as a level one offender.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: May 30, 2007