PEOPLE v. MCCALLA (2018)

Order, Supreme Court, Bronx County (Efrain Alvarado, J.), entered on or about May 20, 2016, which adjudicated defendant a level two 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, based on clear and convincing evidence establishing the existence of aggravating factors not adequately accounted for by the risk assessment instrument (see People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014];  People v. Velasquez, 143 A.D.3d 583, 40 N.Y.S.3d 60 [1st Dept. 2016], lv denied 28 N.Y.3d 914, 74 N.E.3d 676 [2017] ).  As the Board of Examiners of Sex Offenders recommended, an upward departure was supported by the extent of defendant's involvement in child pornography, and his previous federal arrest for possession of child pornography, which resulted in a dismissal following defendant's completion of a pretrial diversion program.

Although defendant emphasizes that his prior federal arrest did not result in a conviction, the disposition appears to have been similar to an adjournment in contemplation of dismissal, which is not an adjudication on the merits (Hollender v. Trump Vil. Coop., 58 N.Y.2d 420, 461 N.Y.S.2d 765, 448 N.E.2d 432 [1983] ).  In any event, the underlying facts of a dismissed case may be considered in sex offender proceedings (People v. Burch, 90 A.D.3d 1429, 1431, 936 N.Y.S.2d 351 [3d Dept. 2011] ).  Rather than profiting from an opportunity for rehabilitation, defendant went on to more serious involvement with child pornography, and this may indicate a danger of recidivism.

We also find that the mitigating factors cited by defendant were accounted for in the risk assessment instrument, and were outweighed by the seriousness of his conduct and prior history.