PEOPLE v. BROWN

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

The PEOPLE of the State of New York, Respondent, v. Eugene BROWN, Defendant-Appellant.

Decided: June 26, 2008

SAXE, J.P., NARDELLI, MOSKOWITZ, ACOSTA, DeGRASSE, JJ. Steven Banks, The Legal Aid Society, New York (Desiree Sheridan of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Marc A. Sherman of counsel), for respondent.

Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about January 30, 2007, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art. 6-C), unanimously affirmed, without costs.

The court properly determined that the risk assessment instrument failed to adequately take into account defendant's extensive record of violent felonies and the fact that he also committed three sexual offenses against fellow prison inmates.   These aggravating factors were not duplicative of the factors relied upon in the risk assessment instrument and guidelines, and they supported the discretionary upward departure by the court to a level three adjudication (see People v. Wilkens, 33 A.D.3d 399, 822 N.Y.S.2d 79 [2006], lv. denied 8 N.Y.3d 801, 828 N.Y.S.2d 292, 861 N.E.2d 108 [2007] ).   We have considered and rejected defendant's remaining claims.