It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Defendant contends in his main brief and his pro se supplemental brief that County Court erred in determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). We reject that contention. The court's upward departure from the presumptive risk level is supported by clear and convincing evidence ( see § 168-n [3]; People v Auld, 24 AD3d 1249, lv denied 6 NY3d 711; People v Heichel, 20 AD3d 934, 935). "If the risk of a repeat offense is high and there is a threat to the public safety, a level three designation is appropriate" ( Heichel, 20 AD3d at 935). Here, an upward departure was warranted based upon defendant's prior sex offenses and history of substance abuse, which together indicated that defendant had a high risk to reoffend that was not adequately taken into account in the risk assessment instrument ( see People v Bottisti, 285 AD2d 841, 842).