People v. BarberPeople v. Barber
Although departures from the presumptive risk level determined by the risk assessment instrument are the exception rather than the rule (see People v White, 25 AD3d 677 [2006]; People v Dexter, 21 AD3d 403, 404 [2005]), a departure is warranted where clear and convincing evidence demonstrates the existence of an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]; People v White, supra; People v Hines, 24 AD3d 524 [2005]).
The Supreme Court providently exercised its discretion in upwardly departing from the presumptive risk level adjudication (see People v White, supra; People v Dexter, supra; People v Stevens, 4 AD3d 786 [2004]).
The defendant‘s contention that the Supreme Court improperly assessed him points under risk factors 5 and 7 is unpreserved for appellate review (see People v Sinclair, 23 AD3d 537 [2005], lv denied 6 NY3d 707 [2006]; People v Burgess, 6 AD3d 686 [2004]; People v Oquendo, 1 AD3d 421, 422 [2003]; People v Roland, 292 AD2d 271, 271 [2002]). Further, the argument made in Point Two of the defendant‘s brief is not properly before us on this appeal. Goldstein, J.P., Mastro, Rivera and Lunn, JJ., concur.