The People of the State of New York, Respondent, v. Luis Bonnet, Defendant–Appellant. (2023)

Twyla Carter, The Legal Aid Society, New York (Denise Fabiano of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Christian Rose of counsel), for respondent.

Order, Supreme Court, New York County (Thomas Farber, J.), entered on or about February 27, 2018, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The assessment of points for both unsatisfactory conduct and release without supervision, arising, respectively, from defendant's violation of probation and his resulting reincarceration, did not constitute double counting (see People v. Cruz, 139 AD3d 601, 602 [1st Dept 2016] ).  In any event, regardless of defendant's correct point score, the court's upward departure to level three was justified by the egregiousness of the underlying offense and defendant's extensive criminal history, including both prior and subsequent sexual offenses.  These factors indicated a grave risk of sexual reoffense that was not adequately taken into account by the risk assessment instrument (see e. g. People v. Roman, 143 AD3d 476 [1st Dept 2016], lv denied 28 NY3d 912 [2017];  People v. Faulkner, 122 AD3d 539 [1st Dept 2014], lv denied 24 NY3d 915 [2015] ).

Defendant did not preserve his current challenges to his designation as a sexually violent offender, including his constitutional claims, and we decline to review them in the interest of justice.