People v. Kraft

215 N.Y.S.3d 606

229 A.D.3d 1016

The PEOPLE of the State of New York, Respondent,

v.Daniel KRAFT, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: June 3, 2024

Decided and Entered: July 25, 2024

Stephen W. Herrick, Public Defender, Albany (James A. Bartosik Jr. of counsel), for appellant.

P. David Soares, District Attorney, Albany (Erin N. LaValley of counsel), for respondent.

Before: Garry, P.J., Clark, Aarons, Pritzker and McShan, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeal from an order of the Supreme Court (Peter A. Lynch, J.), entered July 11, 2022 in Albany County, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.

In 2019, defendant pleaded guilty to promoting a sexual performance by a child and was sentenced to three years in prison, followed by 10 years of postrelease supervision. In anticipation of his release, the Board of Examiners of Sex Offenders prepared a risk assessment instrument pursuant to the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA]) that assigned him a total of 30 points, presumptively classifying him as a risk level one sex offender. The People prepared their own risk assessment instrument assigning defendant an additional 30 points under risk factor 3 (three or more victims) and 20 points under risk factor 7 (criminal conduct directed at strangers) for a total assessment of 80 points, presumptively classifying defendant as a risk level two sex offender. Following a hearing, Supreme Court classified defendant as a risk level two sex offender and denied his request for a downward departure. Defendant appeals.

[1-4] Defendant challenges Supreme Court’s assessment of points under risk factors 3 and 7. Under SORA, "the People bear the burden of proving the facts supporting a defendant’s risk level classification by clear and convincing evidence" (People v. Adams, 216 A.D.3d 1376, 1377, 190 N.Y.S.3d 173 [3d Dept. 2023] [internal quotation marks and citation omitted], lv denied 40 N.Y.3d 904, 2023 WL 6152870 [2023]; see People v. Courtney, 202 A.D.3d 1246, 1247, 162 N.Y.S.Sd 533 [3d Dept. 2022]). As to the assessment of points under risk factor 3, "it is well settled that the children depicted in child pornography are necessarily counted as victims under risk factor 3, permitting the assessment of 30 points whenever there were three or more victims involved" (People v. Howland, 211 A.D.3d 1189, 1190, 179 N.Y.S.3d 464 [3d Dept. 2022] [internal quotation marks, brackets, ellipsis and citations omitted]; see People v. Henry, 182 A.D.3d 939, 939–940, 122 N.Y.S.3d 197 [3d Dept. 2020], lv denied 36 N.Y.3d 901, 2020 WL 6878064 [2020]). Further, "points may be assessed under risk factor 7 when the victimized children portrayed in the images possessed by the defendant were strangers to him or her" (People v. Benton, 185 A.D.3d 1103, 1105, 125 N.Y.S.3d 206 [3d Dept. 2020] [internal quotation marks, brackets and citation omitted], lv denied 35 N.Y.3d 916, 2020 WL 6169835 [2020]; accord People v, Scrom, 205 A.D.3d 1238, 1239, 168 N.Y.S.3d 181 [3d Dept. 2022], lv denied 38 N.Y.3d 914, 2022 WL 4241026 [2022]). In our view, statements made by defendant in the presentence report admitting that he had been viewing pornographic images of "young children and infants" that he obtained "on a darknet site" for several years before his arrest constitute clear and convincing evidence that there were three or more victims and that the victims were strangers to him (see People v. Maelzner, 217 A.D.3d 509, 510, 191 N.Y.S.3d 33 [1st Dept. 2023]; People v. Howland, 211 A.D.8d at 1190–1191, 179 N.Y.S.3d 464; People v. Negron, 202 A.D.3d 1113, 1113, 159 N.Y.S.3d 903 [2d Dept. 2022]; People v. Johnson, 47 A.D.3d 140, 142–143, 846 N.Y.S.2d 541 [4th Dept. 2007], affd 11 N.Y.3d 416, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008]).

[5–8] Defendant also contends that Supreme Court abused its discretion in denying his request for a downward departure to a risk level one classification. "In seek- ing a downward departure, a defendant is required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" (People v. Adams, 216 A.D.3d at 1378, 190 N.Y.S.3d 173 [internal quotation marks, brackets and citations omitted]; see People v. Smith, 211 A.D.3d 1127, 1128, 179 N.Y.S.3d 424 [3d Dept. 2022]). "Even if such a mitigating factor exists, the court then must make a discretionary determination as to whether the overall circumstances warrant a departure to prevent an overassessment of the defendant’s dangerousness and risk of sexual recidivism" (People v. Wilson, 167 A.D.3d 1192, 1193, 88 N.Y.S.3d 715 [3d Dept. 2018] [internal quotation marks and citations omitted]). Defendant argues that the assessment of points under risk factors 3 and 7 overestimated his risk of recidivism and asserts that being married and involved in three adult romantic relationships prior to his offense along with his successful completion of a sex offender treatment program¹ support a downward departure....