—[*1] Steven Banks, The Legal Aid Society, New York (Joanne Legano Ross of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Tracy L. Conn of counsel), for respondent.

Order, Supreme Court, New York County (Brenda Soloff, J.), entered July 15, 2005, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Defendant's argument that the court incorrectly assessed certain risk factor points is academic, because even without the 35 points at issue defendant would still qualify as a level three sex offender. In any event, the points were correctly assessed.

Defendant did not establish a special circumstance warranting a downward departure (see People v Guaman, 8 AD3d 545 [2004]). The psychiatric condition that he advances as a basis for a downward departure would tend to impair his ability to control his behavior and thus would support, if anything, an upward departure.

Defendant's challenges to the choice of risk factors made by the Legislature and the Board of Examiners of Sex Offenders are both waived and without merit (see People v Bligen, 33 AD3d 489 [2006]; People v Joe, 26 AD3d 300 [2006], lv denied 7 NY3d 703 [2006]). Concur—Tom, J.P., Friedman, Sullivan, Nardelli and Catterson, JJ.