Opinion
No. 1575.
December 10, 2009.
Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about January 14, 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 (Adrienne Hale of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Alexis Pimentel of counsel), for respondent.
Before: Mazzarelli, J.P., Nardelli, Catterson, DeGrasse and Roman, JJ.
Regardless of whether defendant's correct point score would make him a presumptive risk level one or two offender, the court properly found clear and convincing evidence of aggravating factors to support its discretionary upward departure to level three. The risk assessment instrument (RAI) did not adequately account for the fact that defendant's prior guilty plea to manslaughter in the first degree stemmed from the strangulation of two elderly victims. Other aggravating factors not addressed by the RAI are defendant's attempt to deceptively portray himself as a police officer in committing the current offense; his engagement in the subject criminal acts for monetary gain and his failure to accept responsibility for his conduct. These additional factors support the court's discretionary upward departure from the presumptive risk level set forth in the RAI ( see e.g. People v Schlau, 60 AD3d 529, lv denied 12 NY3d 712).