
    The People of the State of New York, Respondent, v Sheldon Fenton, Appellant.
    [41 NYS3d 884]
   Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered July 8, 2015, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The People did not meet their burden of establishing, by clear and convincing evidence, that defendant was actually armed with a dangerous instrument during the commission of the offenses (see People v Pearce, 135 AD3d 722 [2d Dept 2016]). Accordingly, 20 points were incorrectly assessed. However, after those points are deducted, resulting in a point score of 75, defendant remains a level two offender, and we find no basis for a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). There were no mitigating factors that were not adequately taken into account by the risk assessment instrument.

Concur—Tom, J.P., Friedman, Saxe, Feinman and Kahn, JJ.  