People v. Johnson

Order, Supreme Court, New York County (Edward J. McLaughlin, J), entered on or about May 26, 2004, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Defendant’s argument that the hearing court’s upward departure from level two to level three improperly relied on factors already accounted for in defendant’s basic score is unpreserved (see People v Cassano, 34 AD3d 239 [2006]), and without merit in any event. The upward departure was properly based on the fact that, while admitted to a psychiatric hospital, defendant raped a fellow patient. Contrary to defendant’s contention, the hearing court did not rely on the violence of the underlying crime. While the court did rely to some extent on defendant’s mental illness, mental illness was not part of his basic score, so there was no double-counting. Concur—Andrias, J.E, Sullivan, Williams, Sweeny and Malone, JJ.