THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. LUCAS GUTSCHOW DEFENDANT APPELLANT (2026)

Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. LUCAS A. GUTSCHOW, DEFENDANT-APPELLANT.

561 Decided: July 24, 2026

PRESENT: LINDLEY, J.P., BANNISTER, OGDEN, DELCONTE, AND HANNAH, JJ.

ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (CHRISTOPHER P. MCCLARY OF COUNSEL), FOR DEFENDANT-APPELLANT. CHRISTINE K. CALLANAN, DISTRICT ATTORNEY, LYONS (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.

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 abused its discretion when it granted the People's request for an upward departure from his presumptive risk level. The People established that defendant had a large quantity of child sexual abuse material as well as his longstanding use of and “self-reported addiction to child [sexual abuse material]” (People v Tatner, 149 AD3d 1595, 1595 [4th Dept 2017], lv denied 29 NY3d 916 [2017] [internal quotation marks omitted]; see People v Walters, 181 AD3d 1106, 1106-1107 [3d Dept 2020]; People v McCabe, 142 AD3d 1379, 1380-1381 [4th Dept 2016]). We conclude that the People established by clear and convincing evidence (see Correction Law § 168-n [3]) the existence of aggravating circumstances not adequately taken into account by the risk assessment guidelines (see Tatner, 149 AD3d at 1595). Furthermore, we cannot conclude that the court, in “weighing the aggravating and mitigating factors,” abused its discretion when it granted the People's request for a one-level upward departure (People v Gillotti, 23 NY3d 841, 861 [2014]; see generally People v Decapua, 179 AD3d 1460, 1461 [4th Dept 2020], lv denied 35 NY3d 906 [2020]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court

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