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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Roderick O'FLAHERTY, Defendant-Appellant.

Decided: November 15, 2005

SAXE, J.P., MARLOW, NARDELLI, GONZALEZ, SWEENY, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Jonathan M. Kirshbaum of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Nicole Beder of counsel), for respondent.

Order, Supreme Court, New York County (John A.K. Bradley, J.), entered on or about April 16, 2004, which adjudicated defendant a level three sex offender and a sexual predator under the Sex Offender Registration Act (Correction Law art. 6-C), unanimously affirmed, without costs.

The Board of Examiners of Sex Offenders determined that defendant was a level two sex offender through a calculation of points based upon the risk assessment instrument, but nevertheless recommended that he be classified as a level three offender based on his delusional and violently unpredictable behavior, his ongoing threats to harm the victim and a previous arrest for sexual misconduct.   These aggravating factors were not adequately taken into account in the Board's risk assessment instrument and guidelines, and support the discretionary upward departure by the Board and by Supreme Court, which accepted the Board's recommendation (see People v. Sanford, 16 A.D.3d 1082, 790 N.Y.S.2d 792 [2005], lv. denied 4 N.Y.3d 711, 798 N.Y.S.2d 724, 831 N.E.2d 969 [2005];  People v. Roland, 292 A.D.2d 271, 739 N.Y.S.2d 694 [2002], lv. denied 98 N.Y.2d 614, 751 N.Y.S.2d 169, 780 N.E.2d 980 [2002];  compare People v. Mount, 17 A.D.3d 714, 792 N.Y.S.2d 697 [2005] ).   The additional classification of defendant as a statutory sexual predator (Correction Law § 168-a[7][a] ) was also correct.   We have considered and rejected defendant's remaining arguments.

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