PEOPLE v. RAY (2021)

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 two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). We reject defendant's contention that County Court erred in granting the People's request for an upward departure to a level two risk. “[W]hen the People establish, by clear and convincing evidence (see Correction Law § 168-n [3]), the existence of aggravating factors that are, ‘as a matter of law, of a kind or to a degree not adequately taken into account by the [risk assessment] guidelines,’ a court ‘must exercise its discretion by weighing the aggravating and [any] mitigating factors to determine whether the totality of the circumstances warrants a departure’ from a sex offender's presumptive risk level” (People v. Havlen, 167 A.D.3d 1579, 1579, 89 N.Y.S.3d 511 [4th Dept. 2018], quoting People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]). Here, we conclude that the determination to grant an upward departure was based on clear and convincing evidence of certain aggravating factors, namely the quantity and nature of the child pornography possessed by defendant (see People v. McCabe, 142 A.D.3d 1379, 1380-1381, 38 N.Y.S.3d 352 [4th Dept. 2016]; People v. Rotunno, 117 A.D.3d 1019, 1019, 986 N.Y.S.2d 344 [2d Dept. 2014], lv denied 24 N.Y.3d 902, 2014 WL 4357489 [2014]), and his use of the internet to engage with an undercover police officer posing as a 13-year-old girl, which included sending child pornography to the officer (see Havlen, 167 A.D.3d at 1579, 89 N.Y.S.3d 511; People v. Agarwal, 96 A.D.3d 1450, 1451, 945 N.Y.S.2d 906 [4th Dept. 2012]).