People v. Otero , 952 N.Y.S.2d 886 ( 2012 )

— Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about May 5, 2010, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The record supports the court’s discretionary upward departure to level three. Initially, we note that defendant’s point score was 105, which is nearly enough for a level three adjudication. The court properly determined that the risk assessment instrument did not adequately take into account aggravating factors including the seriousness of the underlying sex crime (see e.g. People v Schlau, 60 AD3d 529 [1st Dept 2009], lv denied 12 NY3d 712 [2009]). These aggravating factors outweighed any possible mitigating factors cited by defendant. Concur — Andrias, J.E, Saxe, Moskowitz, Abdus-Salaam and Manzanet-Daniels, JJ.