Opinion
No. 2530.
January 15, 2008.
Order, Supreme Court, New York County (Richard D. Carruthers, J.), entered on or about March 18, 2005, 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 (Natalie Rea of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Nicole Beder of counsel), for respondent.
Before: Lippman, P.J., Buckley, Gonzalez and Sweeny, JJ.
The hearing court properly determined that although defendant received points relating to the facts of the underlying sex crime, the risk assessment instrument failed to adequately take into account the extreme and unusual brutality of that crime, which warranted an upward departure ( see People v Ferrer, 35 AD3d 297, lv denied 8 NY3d 807 [2007]; People v Joslyn, 27 AD3d 1033). The court considered defendant's behavior following his release from prison and properly concluded that factor was outweighed by the circumstances of the crime.