Ordered that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, the prosecution presented clear and convincing evidence to support a risk level three classification, including the risk assessment instrument and case summary prepared by the Board of Examiners of Sex Offenders ( see Correction Law § 168-n; People v Arnold, 35 AD3d 827; People v Overman, 7 AD3d 596, 597; People v Burgess, 6 AD3d 686). In any event, even if the defendant's total score under the risk assessment instrument fell below the threshold score for designation as a level three sex offender, an upward departure to level three was warranted ( see People v Fredlund, 38 AD3d 636).
"A departure from the presumptive risk level is warranted where `there exists an aggravating or mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines'" ( People v Inghilleri, 21 AD3d 404, 406, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]; People v Mount, 17 AD3d 714, 715; People v Girup, 9 AD3d 913; People v Guaman, 8 AD3d 545). Here, an upward departure was warranted based upon the defendant's 2005 conviction of rape in the first degree ( see People v Fredlund, 38 AD3d 636; People v Graeber, 31 AD3d 517; People v White, 25 AD3d 677).
The defendant's remaining contention is without merit.