People v. Smith

187 A.D.3d 1228

131 N.Y.S.3d 572 (Mem)

PEOPLE of State of New York, Respondent,

v.Robert SMITH, Appellant.

2018–03336

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

Submitted—September 30, 2020

October 28, 2020

Paul Skip Laisure, New York, N.Y. (Dina Zloczower of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guy James Mangano, Jr., J.), dated January 24, 2018, 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.

The defendant was convicted in federal court, upon his plea of guilty, of possession of child pornography. In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6–C), the Supreme Court, after a hearing, designated the defendant a level two sex offender based upon the assessment of a total of 95 points. On appeal, the defendant challenges the assessment of points under risk factor 3 (number of victims) and risk factor 7 (relationship with victims), and alternatively argues that the court erred in denying his request for a downward departure.

We agree with the Supreme Court's assessment of points under risk factors 3 and 7, since the People established by clear and convincing evidence that the child pornography possessed by the defendant depicted the images of far more than three child victims, and that the children in the images were strangers to the defendant (see People v. Gillotti, 23 N.Y.3d 841, 859–860, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Bolan, 186 A.D.3d 1273, 127 N.Y.S.3d 891 [2d Dept.] ; People v. Benton, 185 A.D.3d 1103, 1104–1105, 125 N.Y.S.3d 206 ; People v. Worrell, 183 A.D.3d 602, 603, 122 N.Y.S.3d 356 ; People v. Waldman, 178 A.D.3d 1107, 112 N.Y.S.3d 554 ).

Contrary to the defendant's contention, he failed to establish his entitlement to a downward departure from the risk level commensurate with the points assigned by the Supreme Court. Although in some cases involving offenders who possessed child pornography, the assessment of points under risk factors 3 and 7 might result in an overassessment of the risk a defendant poses to the community, a downward departure is not warranted under the circumstances here (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ), since the defendant failed to prove the existence of an appropriate mitigating factor by a preponderance of the evidence (see People v. Kopstein, 186 A.D.3d 757, 759, 126 N.Y.S.3d 920 ; People v. Disla, 186 A.D.3d 755, 756, 127 N.Y.S.3d 336 ; People v. Soto, 185 A.D.3d 843, 844, 125 N.Y.S.3d 564 ). In any event, the length of time the defendant had been viewing child pornography, the number of images and video files he possessed, the sadism, masochism, and violence depicted...