
    The People of the State of New York, Respondent, v Kathleen Miller, Appellant.
    [841 NYS2d 812]
   from an order of the Ontario County Court (Frederick G. Reed, J.), entered April 5, 2006. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by determining that defendant is a level one risk pursuant to the Sex Offender Registration Act and as modified the order is affirmed without costs.

Memorandum: Defendant appeals from an order determining that she is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). The point total on the risk assessment instrument prepared by the Board of Examiners of Sex Offenders (Board) presumptively classified defendant as a level one risk, and the Board did not recommend an upward departure from that risk level. We conclude on the record before us that County Court erred in granting the People’s request for an upward departure from defendant’s presumptive risk level to a level three risk. “The People failed to demonstrate by clear and convincing evidence the existence of an aggravating factor of a kind or to a degree not otherwise adequately taken into account by the guidelines that would warrant such an upward departure” (People v Fuller, 37 AD3d 68 [2007]; see People v Burgos, 39 AD3d 520 [2007]). We therefore modify the order accordingly. Present—Scudder, PJ., Martoche, Lunn, Peradotto and Green, JJ.  