| People v Turner |
| 2007 NY Slip Op 09215 [45 AD3d 747] |
| November 20, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Phillip Turner, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee,and Morgan J. Dennehy of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Marrero, J.),dated March 7, 2006, which, after a hearing, designated him a level three sex offender pursuantto Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, the prosecution presented clear and convincingevidence to support a risk level three classification, including the risk assessment instrument andcase summary prepared by the Board of Examiners of Sex Offenders (see Correction Law§ 168-n [3]; People v Arnold,35 AD3d 827 [2006]; People vOverman, 7 AD3d 596, 597 [2004]; People v Burgess, 6 AD3d 686 [2004]). In any event, even if thedefendant's total score under the risk assessment instrument fell below the threshold score fordesignation as a level three sex offender, an upward departure to level three was warranted (see People v Fredlund, 38 AD3d636 [2007]).
"A departure from the presumptive risk level is warranted where 'there exists an aggravatingor mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines' "(People v Inghilleri, 21 AD3d404, 406 [2005], quoting Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 4 [1997 ed]; People vMount, 17 AD3d 714, 715 [2005]; People v Girup, 9 AD3d 913 [2004]; People v Guaman, 8 AD3d 545[2004]). Here, an upward departure was warranted based upon the defendant's 2005 conviction ofrape in the first degree (see People v[*2]Fredlund, 38 AD3d 636 [2007]; People v Graeber, 31 AD3d 517[2006]; People v White, 25 AD3d677 [2006]).
The defendant's remaining contention is without merit. Rivera, J.P., Skelos, Fisher andAngiolillo, JJ., concur.