
    The People of the State of New York, Respondent, v Phillip Turner, Appellant.
    [844 NYS2d 891]
   Appeal by the defendant from an order of the Supreme Court, Kings County (Marrero, J.), dated March 7, 2006, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

Contrary to the defendant’s contention, the prosecution presented clear and convincing evidence to support a risk level three classification, including the risk assessment instrument and case summary prepared by the Board of Examiners of Sex Offenders (see Correction Law § 168-n [3]; People v Arnold, 35 AD3d 827 [2006]; People v Overman, 7 AD3d 596, 597 [2004]; People v Burgess, 6 AD3d 686 [2004]). In any event, even if the defendant’s total score under the risk assessment instrument fell below the threshold score for designation as a level three sex offender, an upward departure to level three was warranted (see People v Fredlund, 38 AD3d 636 [2007]).

“A departure from the presumptive risk level is warranted where ‘there exists an aggravating or mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines’ ” (People v Inghilleri, 21 AD3d 404, 406 [2005], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]; People v Mount, 17 AD3d 714, 715 [2005] ; People v Girup, 9 AD3d 913 [2004]; People v Guaman, 8 AD3d 545 [2004]). Here, an upward departure was warranted based upon the defendant’s 2005 conviction of rape in the first degree (see People v Fredlund, 38 AD3d 636 [2007]; People v Graeber, 31 AD3d 517 [2006]; People v White, 25 AD3d 677 [2006] ).

The defendant’s remaining contention is without merit. Rivera, J.P., Skelos, Fisher and Angiolillo, JJ., concur.  