
    The People of the State of New York, Respondent, v Nikko Simmons, Appellant.
    [993 NYS2d 497]
   Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about April 25, 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.

Defendant was properly assessed 30 points for being armed with a dangerous instrument at the time of the underlying sex crime (see People v Pettigrew, 14 NY3d 406, 408-409 [2010]). Defendant’s other challenges to the court’s assessment of points are unavailing, except that we find that the assessment for defendant’s criminal history should have been 15 points. In any event, the record supports the court’s alternative finding that even if defendant’s point score was only at level two, a discretionary upward departure was warranted, particularly in light of the heinous nature of the underlying crime (see e.g. People v Guasp, 95 AD3d 608 [1st Dept 2012], lv denied 19 NY3d 812 [2012]). Likewise, the court properly exercised its discretion when it declined to grant a downward departure.

Concur — Tom, J.E, Friedman, Feinman, Gische and Kapnick, JJ.  