The People of the State of New York, Respondent, v. Mitchell Texidor, Appellant

The People of the State of New York, Respondent, v Mitchell Texidor, Appellant. [21 NYS3d 894] [MAJORITY] Order, Supreme Court, New York County (Michael J. Obus, J.), entered June 25, 2013, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs. The court’s upward departure was a provident exercise of discretion. Clear and convincing evidence established aggravating factors that were not otherwise adequately taken into account by the risk assessment guidelines (see e.g. People v Poole, 105 AD3d 654 [1st Dept 2013], lv denied 21 NY3d 863 [2013]). The underlying sex crime was committed, under egregious circumstances, during a burglary, and defendant’s background includes prior convictions for both a sex crime and a residential burglary. Defendant’s pattern of misconduct displays a likelihood of recidivism that outweighs the mitigating factors he cites. Concur — Tom, J.P., Mazzarelli, Richter and Gische, JJ.