People v Coleman, 2011 NY Slip Op 05633 [85 AD3d 690]

June 30, 2011

Appellate Division, First Department

— [*1]

Steven Banks, The Legal Aid Society, New York (Arthur H. Hopkirk of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.

Order, Supreme Court, New York County (Ronald Zweibel, J.), entered on or about April 27, 2009, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The record supports a point score of 110, qualifying defendant as a level three offender. We have considered and rejected defendant’s challenges to the court’s point assessments for the risk factors of sexual contact with victim and number of victims.

Regardless of whether defendant’s correct point score qualifies him as a presumptive risk level three offender, the record supports the court’s discretionary upward departure ( see e.g . People v Schlau , 60 AD3d 529 [2009], lv denied 12 NY3d 712 [2009]). In separate incidents over a period of three weeks, defendant followed three women into their apartment buildings and brutally attacked each of them. Defendant sexually assaulted two of them, and, as the court observed, it is a reasonable inference that he intended to sexually assault the third. The risk assessment instrument did not adequately account for this dangerous, predatory pattern of conduct. Concur—Tom, J.P., Saxe, Catterson, Moskowitz and Acosta, JJ..