People v. Vives , 872 N.Y.2d 1 ( 2008 )

The record supports the court’s discretionary upward departure to a level three sex offender adjudication. There was ample evidence to support aggravating factors not adequately accounted for in the risk assessment instrument (see e.g. People v O’Flaherty, 23 AD3d 237 [2005], lv denied 6 NY3d 705 [2006]), and there was no improper double counting. These aggravating factors demonstrated that defendant is a dangerous pedophile with a grave risk of reoffending, notwithstanding his conclusory claims of having been rehabilitated during his incarceration. Concur—Andrias, J.P., Nardelli, Sweeny, DeGrasse and Freedman, JJ.