NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 8, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
PHILLIP CLARK, DEFENDANT-APPELLANT.
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 Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Andrias, J.P., Saxe, Sweeny, Moskowitz, Abdus-Salaam, JJ.
The record supports the court's discretionary upward departure to a level three sex offender adjudication. Defendant committed a serious sexual assault that was similar to the offense requiring registration, but that was not accounted for in the risk assessment instrument because it was a subsequent offense. This conduct demonstrates that defendant poses an increased risk to public safety, and warrants the upward departure (see People v Buss, 44 AD3d 634, 635 , affd 11 NY3d 553 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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