PEOPLE v. BONCZEK (2024)

Order, Supreme Court, New York County (Daniel Conviser, J.), entered on or about December 17, 2018, 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 court providently exercised its discretion in granting an upward departure to a risk level three adjudication (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  The numerous aggravating factors that were unaccounted for by the risk assessment instrument and the heinousness of defendant's underlying crime outweighed any mitigating considerations.  Defendant was convicted of possession of child pornography, including images of an egregious and sadomasochistic nature.  Further, while defendant was released on bond pending trial, he was found to be in possession of newly accessed sexually suggestive photographs of prepubescent boys and a book published by the North American Man–Boy Love Association.  The foregoing, along with defendant's history of exploiting his profession as a psychotherapist to gain access to children and prior uncharged acts of sexual abuse of two young boys, demonstrate that he is a dangerous pedophile with a high risk of reoffending (see People v. Vives, 57 A.D.3d 312, 313, 872 N.Y.S.2d 1 [1st Dept. 2008], lv denied 12 N.Y.3d 705, 879 N.Y.S.2d 52, 906 N.E.2d 1086 [2009];  People v. Newman, 71 A.D.3d 488, 899 N.Y.S.2d 144 [1st Dept. 2010]).