PEOPLE v. JARDIN (2008)

Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about March 22, 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.

Defendant's arguments against an upward departure are improperly raised for the first time on appeal (see CPLR 4017, 5501[a][3];  Correction Law § 168-n[3];  People v. Hernandez, 44 A.D.3d 565, 843 N.Y.S.2d 828 [2007], lv. denied, 10 N.Y.3d 708, 859 N.Y.S.2d 393, 889 N.E.2d 80 [2008] ).   In any event, the court properly exercised its discretion in upwardly departing from defendant's presumptive risk level, based on the seriousness of a prior conviction involving the death of one victim and serious injury to another, and of the underlying sex crime.   These aggravating factors were not adequately accounted for in the risk assessment instrument, which did not fully capture the seriousness of defendant's conduct (see People v. Balic, 52 A.D.3d 201, 860 N.Y.S.2d 17 [2008];  People v. Ferrer, 35 A.D.3d 297, 826 N.Y.S.2d 70 [2006], lv. denied, 8 N.Y.3d 807, 833 N.Y.S.2d 427, 865 N.E.2d 844 [2007] ).