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.
Decided on September 25, 2012
Andrias, J.P., Sweeny, Moskowitz, Freedman, Richter, JJ.
Order, Supreme Court, New York County (Arlene D. Goldberg, J.), entered on or about November 12, 2009, 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. The court properly determined that although defendant received points relating to his use of violence in the commission of the underlying sex crime, the risk assessment instrument did not adequately take into account the extreme brutality of the crime, which led to convictions of attempted murder in the second degree, sodomy in the first degree, and robbery in the first degree (see e.g. People v Guasp, 95 AD3d 608 [1st Dept 2012]). These aggravating factors outweighed the mitigating factors cited by defendant.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 25, 2012
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