PEOPLE v. BADGLEY (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).  We reject defendant's contention that County Court abused its discretion in granting the People's request for an upward departure to a level three risk.  “It is well settled that a court may grant an upward departure from a sex offender's presumptive risk level when the People establish, by clear and convincing evidence ․, the existence of an aggravating ․ factor of a kind, or to a degree, that is otherwise not adequately taken into account by the [risk assessment] guidelines” (People v. Cardinale, 160 A.D.3d 1490, 1490–1491, 76 N.Y.S.3d 708 [4th Dept. 2018] [internal quotation marks omitted] ).  Here, we conclude that the court properly granted the People's request for an upward departure based on clear and convincing evidence of certain aggravating factors, including, inter alia, the lengthy period of time in which defendant viewed child pornography (see People v. Eiss, 158 A.D.3d 905, 906, 70 N.Y.S.3d 604 [3d Dept. 2018], lv denied 31 N.Y.3d 907, 2018 WL 2123205 [2018]; People v. Varin, 158 A.D.3d 1311, 1311–1312, 68 N.Y.S.3d 359 [4th Dept. 2018], lv denied 31 N.Y.3d 905, 2018 WL 2014637 [2018] ), the fact that he actively searched and traded child pornography with others online (see People v. Houck, 170 A.D.3d 1642, 1643, 94 N.Y.S.3d 752 [4th Dept. 2019] ), his “crossover between both molesting children and masturbating to child pornography” (see generally People v. Agarwal, 96 A.D.3d 1450, 1451, 945 N.Y.S.2d 906 [4th Dept. 2012] ), and his underlying mental health issues (see People v. McCollum, 41 A.D.3d 1187, 1188, 839 N.Y.S.2d 360 [4th Dept. 2007], lv denied 9 N.Y.3d 807, 843 N.Y.S.2d 537, 875 N.E.2d 30 [2007] ).