Appeal by the defendant from an order of the Supreme Court, Westchester County (Adler, J.), entered March 22, 2006, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
Ordered that the order is reversed, on the law, without costs or disbursements, and the defendant is reclassified as a level two sex offender.
Although a court is empowered to exercise its discretion and depart from the presumptive risk level based upon the facts in the record (see People v Girup, 9 AD3d 913 [2004]; People v Guaman, 8 AD3d 545 [2004]), it has been recognized that “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, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]; see also People v Agard, 35 AD3d 568 [2006]; People v Inghilleri, 21 AD3d 404 [2005]). Thus, a departure from the presumptive risk level is generally only 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” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]; see People v Agard, supra at 568; People v Hegazy, 25 AD3d 675 [2006]; People v Inghilleri, supra). There must be clear and convincing evidence of a special circumstances to warrant a departure from the presumptive risk level (People v Agard, supra; People v Ventura, 24 AD3d 527 [2005]). „
Here, the court departed from the defendant’s presumptive risk level based upon its in camera review of medical records in which there were diagnoses that the defendant was suffering