PEOPLE v. GONZALEZ (2006)

Order, Supreme Court, Bronx County (Harold Adler, J.), entered on or about March 30, 2004, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art. 6-C), unanimously affirmed, without costs.

The People met their burden of establishing various risk factors bearing a sufficient total point score to support a level three sex offender adjudication.   Although the underlying conviction was based on a guilty plea to attempted rape, the People provided reliable evidence (see Correction Law § 168-n [3] ) of sexual contact supporting an assessment of 25 points.   The court also properly determined that, in any event, a discretionary upward departure would be warranted by the circumstance that defendant committed the underlying crime after absconding from a work release program, a factor not otherwise considered by the risk assessment instrument (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] ).