
    The People of the State of New York, Respondent, v Guillermo Rodriguez, Appellant.
    [65 NYS3d 452]
   Order, Supreme Court, Bronx County (Steven L. Barrett, J.), entered on or about February 19, 2016, 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.

The court properly exercised its discretion (see generally People v Gillotti, 23 NY3d 841, 861 [2014]) in following the Board of Examiners of Sex Offenders’ recommendation for an upward departure. The risk assessment instrument did not adequately account for the fact that six months after committing the underlying rape, defendant committed a sex crime against a child (for which he was also adjudicated a level three offender). This evinces defendant’s serious threat to public safety, which outweighs the mitigating factors he cites. We reject defendant’s attempt to minimize the second crime on the ground that he committed it before being arrested for the first crime (see People v Gauthier, 100 AD3d 1223, 1225-1226 [3d Dept 2012]).

Concur—Friedman, J.P., Kahn, Gesmer, Kern and Moulton, JJ.  