Robert S. Dean, Center for Appellate Litigation, New York (Jill K. Sanders of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Eric C. Washer of counsel), for respondent.
Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about April 25, 2013, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
Defendant was properly assessed 30 points for being armed with a dangerous instrument at the time of the underlying sex crime ( see People v. Pettigrew, 14 N.Y.3d 406, 408–409, 901 N.Y.S.2d 569, 927 N.E.2d 1053 [2010] ). Defendant's other challenges to the court's assessment of points are unavailing, except that we find that the assessment for defendant's criminal history should have been 15 points. In any event, the record supports the court's alternative finding that even if defendant's point score was only at level two, a discretionary upward departure was warranted, particularly in light of the heinous nature of the underlying crime (see e.g. People v. Guasp, 95 A.D.3d 608, 944 N.Y.S.2d 112 [1st Dept.2012], lv. denied 19 N.Y.3d 812, 2012 WL 4017728 [2012] ). Likewise, the court properly exercised its discretion when it declined to grant a downward departure.
TOM, J.P., FRIEDMAN, FEINMAN, GISCHE, KAPNICK, JJ., concur.