People v. Capellan

Order, Supreme Court, Bronx County (Patricia DiMango, J.), entered December 10, 2013, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs. The court’s discretionary upward departure was based on clear and convincing evidence of aggravating factors to a degree not taken into account by the risk assessment instrument (see e.g. People v Sherard, 73 AD3d 537 [1st Dept 2010], lv denied 15 NY3d 707 [2010]). Contrary to defendant’s argument, the court did not rely solely on defendant’s psychiatric illness. Instead, it cited a combination of serious aggravating factors indicative of a grave risk of reoffense, including defendant’s threat to the victim of the underlying crime and his boast that he had committed other sex crimes and would continue to commit them. Defendant’s argument regarding an alleged overas-sessment of points under one of the risk factors is unavailing. Concur—Mazzarelli, J.P., Sweeny, Richter, Manzanet-Daniels and Feinman, JJ.