Appeal by the defendant from an order of the County Court, Nassau County (Brown, J.), dated August 19, 2005, which, after a hearing, designated him a level two 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 designated as a level one sex offender.
Although a court is empowered to exercise its discretion and depart from the presumptive risk level based upon facts in the record, 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 Coffey, 45 AD3d 658, 658 [2007], quoting People v Guaman, 8 AD3d 545, 545 [2004] [internal quotation marks omitted]; see People v Burgos, 39 AD3d 520 [2007]; People v Inghilleri, 21 AD3d 404, 405 [2005]). A departure from the presumptive risk level is warranted only 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 Coffey, 45 AD3d at 658, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [Nov. 1997]; see People v Burgos, 39 AD3d at 520; People v Hegazy, 25 AD3d 675, 676 [2006]; People v Inghilleri, 21 AD3d at 405). There must be clear and convincing evidence of a special circumstance to warrant a departure from the presumptive risk level (see People v Coffey, 45 AD3d at 658; People v Burgos, 39 AD3d 520 [2007]; People v Inghilleri, 21 AD3d at 405).
Here, the County Court granted the People’s application for an upward departure. However, the County Court failed to set forth the findings of fact and conclusions of law upon which it based its determination (see Correction Law § 168-n [3]; People v Smith, 11 NY3d 797, 798 [2008]). Remittal is not required, though, as the record in this case is sufficient for this Court to make its own findings of fact and conclusions of law (see People v Hill, 50 AD3d 990, 991 [2008]; People v Banks, 48 AD3d 656 [2008]; People v Penson, 38 AD3d 866, 867 [2007]).
The People contend that they demonstrated by clear and
Accordingly, the County Court should not have granted the People’s application for an upward departure, and the defendant must be designated as a level one sex offender. Covello, J.P., Florio, Eng and Chambers, JJ., concur.