PEOPLE v. CASTRO (2023)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about September 17, 2021, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The record supports the court's discretionary upward departure to a level three sex offender adjudication (see People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  “Clear and convincing evidence established the presence of aggravating factors, demonstrating a risk of harm to children, that were not otherwise adequately taken into account by the risk assessment instrument, including factors specified in the 2012 position statement on child pornography of the Board of Examiners of Sex Offenders” (People v. Scott E., 190 A.D.3d 501, 135 N.Y.S.3d 827 [1st Dept. 2021], lv denied 36 N.Y.3d 913, 2021 WL 1805323 [2021]).  Defendant was in possession of a large number of child pornography images and videos, had viewed and collected child pornography for an extensive period of time, and attempted to pay an application developer to develop an application to hide the images on his cell phone (see People v. Wanko, 193 A.D.3d 430, 146 N.Y.S.3d 99 [1st Dept. 2021], lv denied 37 N.Y.3d 910, 2021 WL 4190211 [2021];  People v. Ryan, 157 A.D.3d 463, 66 N.Y.S.3d 440 [1st Dept. 2018], lv denied 31 N.Y.3d 904, 2018 WL 1957488 [2018]).  In addition, defendant started an online sexual relationship with an underage female and solicited images of her performing sexually explicit acts, and had attempted to contact her while he was out on bail pending trial on the underlying offenses (see People v. Bernstein, 156 A.D.3d 448, 449, 65 N.Y.S.3d 497 [1st Dept. 2017];  see also People v. Guyette, 140 A.D.3d 1555, 1556, 35 N.Y.S.3d 518 [3d Dept. 2016]).  The mitigating factors cited by defendant were either adequately taken into account by the risk assessment instrument or were outweighed by the aggravating factors.  The totality of the circumstances warranted an upward departure to avoid an underassessment of defendant's dangerousness and risk of recidivism.