People v. Fyall (64 A.D.3d 417, 2009)

Order, Supreme Court, New York County (Renee A. White, J.), entered on or about March 20, 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.

Clear and convincing evidence supported the assessment of 15 points for the risk factor of drug or alcohol abuse. With this assessment, defendant qualifies as a level three offender without an upward departure. In any event, the record also supports the court’s upward departure, based on aggravating factors that were established by clear and convincing evidence and were not adequately taken into account by the risk assessment instrument (see e.g. People v Sullivan, 46 AD3d 285 [2007], lv denied 10 NY3d 704 [2008]). Concur—Gonzalez, PJ., Tom, Mazzarelli, Andrias and Saxe, JJ.