Paul Skip Laisure, New York, NY (Nao Terai of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Anthea H. Bruffee of counsel; Keerthana Nunna on the brief), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (William M. Harrington, J.), dated July 29, 2019, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

At a risk assessment hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C [hereinafter SORA]), the Supreme Court granted the People's application for an upward departure from the presumptive risk level two to risk level three.

" 'A court may exercise its discretion and depart upward from the presumptive risk level where it concludes that there exists an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] [G]uidelines' " (People v Washington, 186 AD3d 1275, 1276 [2020], quoting People v Richardson, 101 AD3d 837, 838 [2012]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]). "The aggravating factor 'must tend to establish a higher likelihood of reoffense or danger to the community,' and 'the People must prove the facts in support of the aggravating factor by clear and convincing evidence' " (People v Washington, 186 AD3d at 1276, quoting People v Wyatt, 89 AD3d 112, 123 [2011]; see Correction Law § 168-n [3]). "When the People have met this burden, the court must then 'exercise its discretion by weighing the aggravating and [any] mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant's dangerousness and risk of sexual recidivism' " (People v Paul, 168 AD3d 1004, 1005 [2019], quoting People v Gillotti, 23 NY3d 841, 861 [2014]).

Here, the Supreme Court should not have relied upon the defendant's perceived lack of control over his impulsive sexual behavior as a basis for granting the People's application for an upward departure (see People v Chandler, 48 AD3d 770, 772 [2008]). The record reveals that there was no clinical assessment presented at the SORA hearing that found that the defendant had a psychological, physical, or organic abnormality that decreased his ability to control such behavior (see id.; People v Kraus, 45 AD3d 826, 827 [2007]).

Nevertheless, we agree with the Supreme Court's determination granting the People's [*2]application for an upward departure, but do so on an alternate ground. The People presented clear and convincing evidence of aggravating circumstances of a kind or to a degree not adequately taken into account by the Guidelines, namely, the defendant's escalating sexual misconduct, including the defendant's subsequent criminal conduct following the underlying sex offense (see People v Smith, 168 AD3d 1006, 1007 [2019]; People v Amorin, 164 AD3d 1483, 1483-1484 [2018]; People v Ragabi, 150 AD3d 1161, 1161-1162 [2017]). Upon determining the existence of these aggravating factors, the court providently exercised its discretion in granting the application (see People v Smith, 168 AD3d at 1007). Dillon, J.P., Chambers, Austin, Hinds-Radix and Christopher, JJ., concur.