
    The People of the State of New York, Respondent, v Darwin Nunez, Appellant.
    [975 NYS2d 871]
   Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or about July 17, 2012, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Regardless of whether the court properly assessed defendant 15 points for infliction of physical injury, defendant still qualifies as a level two offender, and there is no basis for a discretionary downward departure to level one (see People v Pettigrew, 14 NY3d 406, 409 [2010]). The underlying offense, committed against a child, was serious, and the mitigating factors cited by defendant were generally taken into account by the risk assessment instrument. Concur — Tom, J.E, Friedman, Renwick, Feinman and Clark, JJ.  