35 A.D.3d 297
N.Y. App. Div.
2006

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v JOSE FERRER, Appellant.

Supreme Court, Appellate Division, First Department, New York

[826 NYS2d 70]

Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about May 19, 2005, which, to the extent appealed from as limited by the brief, adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The hearing court properly determined that the risk assessment instrument failed to adequately take into account the paternal relationship between defendant and the victim, that the victim was helpless when left home alone with defendant, and that defendant threatened the victim with the use of a gun. These aggravating factors were not duplicative of the factors relied upon in the risk assessment instrument and guidelines, and they supported the discretionary upward departure by the court to a level three adjudication (see People v Joslyn, 27 AD3d 1033 [2006]; People v O‘Flaherty, 23 AD3d 237 [2005], lv denied 6 NY3d 705 [2006]). Concur—Tom, J.P., Marlow, Williams, Gonzalez and Catterson, JJ.