
    The People of the State of New York, Respondent, v Joseph S. McDonnell, Jr., Appellant.
    [932 NYS2d 352]
   In this proceeding under the Sex Offender Registration Act (see Correction Law art 6-C), the Board of Examiners of Sex Offenders (hereinafter the Board) prepared a risk assessment instrument (hereinafter the RAI) assessing points under various risk factors for a toted score within risk level two. The Board’s point assessment was supported by clear and convincing evidence of the applicable risk factors, thus rendering a presumptive risk level two designation (see Correction Law § 168-d [3]; People v Pettigrew, 14 NY3d 406, 408-409 [2010]). The defendant was properly designated a “predicate sex offender” subject to lifetime registration based upon his previous convictions of sex offenses (Correction Law § 168-a [2], [7] [c]; § 168-h [2]).

The defendant contends that the County Court erred in granting the People’s application, upon the recommendation of the Board, for an upward departure to risk level three. A court may exercise its discretion and depart upward from the presumptive risk level where “it concludes that there exists an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006]). There must be clear and convincing evidence of the existence of the aggravating factor to warrant the court’s exercise of discretion (see Correction Law § 168-n [3]; People v Wyatt, 89 AD3d 112 [2d Dept 2011]; People v Walker, 67 AD3d 760, 761 [2009]). Contrary to the defendant’s contention, the People demonstrated by clear and convincing evidence the existence of an aggravating factor that was not adequately taken into account by the guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 14 [2006]) and, on the record presented, the Supreme Court providently granted the People’s application for an upward departure (see People v Walker, 67 AD3d at 761; People v Hill, 50 AD3d 990 [2008]; People v Agard, 35 AD3d 568 [2006]; People v Hines, 24 AD3d 524 [2005]).

The defendant’s remaining contention is without merit. Angiolillo, J.R, Balkin, Dickerson and Cohen, JJ., concur.  