Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.), dated February 24, 2009, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
“[U]tilization of the risk assessment instrument will gener
Here, the People presented evidence, including the defendant’s own admission, establishing that he intended to rape the victim, but his attempt was thwarted by a police officer who heard the victim screaming for help. This was an aggravating factor of a kind, or to a degree, otherwise not adequately taken into account by the guidelines. Since the rape was not completed, the defendant was assessed only 10 points under factor 2 for touching that occurred under the clothing, and not 25 points for sexual intercourse. As a result, the defendant’s total assessment was 65 points, placing him at level one. However, it is “evident that [the defendant] intended to rape his victim, [and] that the lack of points in this category resulted] in an under-assessment of the [defendant’s] actual risk to public safety” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 9 [2006]; see People v Mudd, 43 AD3d 1128, 1129 [2007]). Accordingly, the Supreme Court providently exercised its discretion in upwardly departing from level one to level two (see People v Mudd, 43 AD3d at 1129).
The defendant’s remaining contentions are academic. Mastro, J.P., Angiolillo, Chambers and Cohen, JJ., concur.