Opinion
No. 1696.
December 8, 2009.
Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about November 3, 2008, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
Steven Banks, The Legal Aid Society, New York (Laura Lieberman Cohen of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Brian J. Reimels of counsel), for respondent.
Before: Andrias, J.P., Saxe, Sweeny, Moskowitz and Abdus-Salaam, JJ.
The record supports the court's discretionary upward departure to a level three sex offender adjudication. Defendant committed a serious sexual assault that was similar to the offense requiring registration, but that was not accounted for in the risk assessment instrument because it was a subsequent offense. This conduct demonstrates that defendant poses an increased risk to public safety, and warrants the upward departure ( see People v Buss, 44 AD3d 634, 635, affd 11 NY3d 553).