PEOPLE v. SCHLAU (2009)

Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about November 20, 2007, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6-C), unanimously affirmed, without costs.

 The court properly assessed defendant 15 points for history of drug or alcohol abuse based on his admissions to correctional officials and the results of a diagnostic assessment (see People v. Reyes, 48 A.D.3d 267, 268, 851 N.Y.S.2d 489 [2008], lv. denied 10 N.Y.3d 711, 860 N.Y.S.2d 484, 890 N.E.2d 247 [2008] ). The evidence of a single recent negative test for substance abuse, following defendant's extensive periods of incarceration, was insufficient to predict his behavior when no longer under supervision (see People v. Gonzalez, 48 A.D.3d 284, 852 N.Y.S.2d 71 [2008], lv. denied 10 N.Y.3d 711, 860 N.Y.S.2d 483, 890 N.E.2d 246 [2008] ).

 The court properly found clear and convincing evidence of aggravating factors supporting the court's discretionary upward departure.   The risk assessment instrument did not adequately account for the full extent of defendant's prior record (see People v. Wilkens, 33 A.D.3d 399, 822 N.Y.S.2d 79 [2006], lv. denied 8 N.Y.3d 801, 828 N.Y.S.2d 292, 861 N.E.2d 108 [2007] ) and the serious circumstances of the current offense requiring registration (see People v. Ellis, 52 A.D.3d 1272, 859 N.Y.S.2d 809 [2008], lv. denied 11 N.Y.3d 707, 868 N.Y.S.2d 599, 897 N.E.2d 1083 [2008] ).