THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. NATHAN JOHNSON DEFENDANT APPELLANT (2026)

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.) after a conviction of possessing a sexual performance by a child (Penal Law § 263.16). Initially, we agree with defendant that Supreme Court “failed to set forth its findings of fact and conclusions of law as required by Correction Law [§ 168-d (3)] in determining defendant's request for a downward departure” (People v Dyer, 225 AD3d 1263, 1264 [4th Dept 2024], lv denied 42 NY3d 907 [2024]). Nevertheless, the record is sufficient for us to render our own findings of fact and conclusions of law (see People v Rivera, 228 AD3d 1327, 1328 [4th Dept 2024], lv denied 42 NY3d 907 [2024]; Dyer, 225 AD3d at 1264).

Defendant was arrested after the execution of a search warrant revealed that he possessed 95 photographs and 4 video files of child sexual abuse material (CSAM). The court assessed defendant a total of 80 points under risk factors 3, 5, and 7 of the risk assessment instrument. The Court of Appeals has recognized that “scoring points under [risk] factors 3 and 7 may overestimate the risk of reoffense and danger to the public posed by quite a few [CSAM] offenders” (People v Gillotti, 23 NY3d 841, 860 [2014]). Consequently, “in deciding a [CSAM] offender's application for a downward departure, a ․ court should, in the exercise of its discretion, give particularly strong consideration to the possibility that adjudicating the offender in accordance with the [G]uidelines point score and without departing downward might lead to an excessive level of registration” (id.). In conducting that analysis, the court must follow the familiar “three analytical steps to determine whether or not to order a departure from the presumptive risk level indicated by the offender's [G]uidelines factor score” (id. at 861).

We agree with defendant that there are mitigating factors here, i.e., the assessment of points under risk factors 3 and 7 (see People v Stagles, 222 AD3d 1341, 1343 [4th Dept 2023]) and the fact that he received a probationary sentence, “thus indicating that [he] does not pose a significant threat to the community” (People v Paine, 207 AD3d 1202, 1203 [4th Dept 2022], lv denied 39 NY3d 902 [2022]). Contrary to defendant's contention, however, his lack of a criminal record and strong family support network “do not constitute proper mitigating factors inasmuch as those circumstances were adequately taken into account by the risk assessment guidelines” (Dyer, 225 AD3d at 1264; see People v Wolcott, 232 AD3d 1321, 1322 [4th Dept 2024], lv denied 44 NY3d 903 [2025]; People v Davis, 170 AD3d 1519, 1519-1520 [4th Dept 2019], lv denied 33 NY3d 907 [2019]). In addition, defendant failed to show how his good academic skills and stable employment would reduce his risk of sexual recidivism or danger to the community (see Dyer, 225 AD3d at 1264-1265; Davis, 170 AD3d at 1520).

We reject defendant's contention that this case is similar to Stagles, in which we exercised our discretion to grant a downward departure to risk level one (222 AD3d at 1343-1344). Although we acknowledge that there are similarities between defendant in this case and the defendant in Stagles, we note that the defendant in Stagles was 19 years old at the time of his arrest and defendant in this case was 38 years old (id. at 1342). In addition, we noted in Stagles that “[s]ignificantly, there is no indication that defendant shared the [CSAM] images or video with anyone else” (id. at 1343), whereas here, defendant transferred a video file to an undercover police officer. Defendant also stated that he was sexually aroused by the CSAM images and admitted to this being a fantasy of his. We conclude that, “the totality of the circumstances does not warrant a downward departure inasmuch as defendant's presumptive risk level does not represent an over-assessment of his dangerousness and risk of sexual recidivism” (Dyer, 225 AD3d at 1265; see People v Schumacher, 224 AD3d 1326, 1328 [4th Dept 2024], lv denied 42 NY3d 902 [2024]; Paine, 207 AD3d at 1203).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court