PEOPLE v. PAINE (2022)

MEMORANDUM AND ORDER

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

Memorandum: On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that County Court abused its discretion in denying his request for a downward departure from his presumptive risk level. We reject that contention.

Defendant was convicted upon a plea of guilty of possessing a sexual performance by a child (Penal Law § 263.16), relating to his possession of over 5,000 images and videos of child pornography. In anticipation of a sentence of 10 years of probation, the Monroe County Probation Department completed a risk assessment instrument that assessed defendant a risk factor score of 120 points. The court, with the consent of the People, removed points for certain risk factors relating to criminal history and acceptance of responsibility. Ultimately, the court assessed defendant a risk factor score of 90 points, making him a presumptive level two risk. That assessment included 30 points for risk factor 3, i.e., greater than three victims, and 20 points for risk factor 7, i.e., a stranger relationship with the victims.

Defendant failed to establish by a preponderance of the evidence the existence of mitigating factors that were, as a matter of law, of a kind or to a degree not adequately taken into account by the guidelines (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]). Further, although the court, on the People's recommendation, sentenced defendant to only a term of probation, thus indicating that defendant does not pose a significant threat to the community (see People v. Morana, 198 A.D.3d 1275, 1277, 154 N.Y.S.3d 187 [4th Dept. 2021]), defendant failed to preserve for our review his contention that the probationary sentence is a mitigating factor warranting a downward departure (see People v. Colon, 186 A.D.3d 1730, 1731, 130 N.Y.S.3d 89 [2d Dept. 2020], lv denied 36 N.Y.3d 903, 2020 WL 7502550 [2020]). Even assuming, arguendo, that the probationary sentence is an appropriate mitigating factor (see Morana, 198 A.D.3d at 1276-1277, 154 N.Y.S.3d 187; see generally Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701), we conclude that the court did not abuse its discretion in determining that the totality of the circumstances, including the other alleged mitigating factors, did not warrant a departure from the presumptive risk level (see Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; cf. Morana, 198 A.D.3d at 1277, 154 N.Y.S.3d 187).