PEOPLE v. WANKO (2021)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about March 28, 2017, which adjudicated defendant a level two offender pursuant to the Sex Offender Registration Act (Correctional 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]).  The court reasonably concluded that an increased likelihood of reoffense, not captured in the risk assessment instrument, was indicated by, among other things, the large number of child pornography images and videos possessed by defendant, the disturbing nature of the material, and the duration of defendant's viewing and retention of the material (see e.g. 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]).  The mitigating factors cited by defendant do not warrant a different result.