People v Clark

2009 NY Slip Op 09082 [68 AD3d 485]

December 8, 2009

Appellate Division, First Department

As corrected through Wednesday, February 10, 2010

The People of the State of New York,Respondent, v Phillip Clark, Appellant.

—[*1]Steven Banks, The Legal Aid Society, New York (Laura Lieberman Cohen of counsel),for appellant.

Robert T. Johnson, District Attorney, Bronx (Brian J. Reimels of counsel), forrespondent.

Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about November 3,2008, which adjudicated defendant a level three sex offender pursuant to the Sex OffenderRegistration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The record supports the court's discretionary upward departure to a level three sex offenderadjudication. Defendant committed a serious sexual assault that was similar to the offenserequiring registration, but that was not accounted for in the risk assessment instrument because itwas a subsequent offense. This conduct demonstrates that defendant poses an increased risk topublic safety, and warrants the upward departure (see People v Buss, 44 AD3d 634, 635 [2007], affd 11NY3d 553 [2008]). Concur—Andrias, J.P., Saxe, Sweeny, Moskowitz and Abdus-Salaam,JJ.