PEOPLE v. WILKENS (2006)

Order, Supreme Court, New York County (Daniel P. FitzGerald, J.), entered April 20, 2005, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art. 6-c), unanimously affirmed, without costs.

The record supports the level three sex offender adjudication.   Two of defendant's three prior violent felonies were not adequately accounted for in the risk assessment instrument, and thus there was no improper double counting.   These aggravating factors support the court's discretionary upward departure (see People v. O'Flaherty, 23 A.D.3d 237, 806 N.Y.S.2d 11 [2005], lv. denied 6 N.Y.3d 705, 812 N.Y.S.2d 34, 845 N.E.2d 466 [2005] ).   The court properly assessed 15 points for risk factor 11, “Drug or Alcohol Abuse,” since defendant had two drug possession convictions which occurred within two years of one another and within five years of the classification hearing.   We have considered and rejected defendant's remaining claims, including his arguments concerning the choice of risk factors made by the Legislature and the Board of Examiners of Sex Offenders (see People v. Joe, 26 A.D.3d 300, 810 N.Y.S.2d 63 [2006], lv. denied 7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241 [2006] ).