PEOPLE v. HAYON (2024)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Danny K. Chun, J.), entered February 17, 2022, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

The defendant was convicted, upon a jury verdict, of 94 counts of possessing a sexual performance by a child (see People v. Hayon, 211 A.D.3d 966, 179 N.Y.S.3d 786).  In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the Supreme Court, after a hearing, assessed the defendant 95 points on the risk assessment instrument, denied his application for a downward departure from his presumptive risk level, and designated him a level two sex offender.  The defendant appeals.

Contrary to the defendant's contention, the Supreme Court properly denied his application for a downward departure.  Although in some child pornography cases the assessment of points under risk factors 3 and 7 can result in an overassessment of a defendant's level of risk (see People v. Gillotti, 23 N.Y.3d 841, 860, 994 N.Y.S.2d 1, 18 N.E.3d 701), a downward departure was not warranted under the circumstances of this case (see People v. Benchocron, 226 A.D.3d 832, 833, 209 N.Y.S.3d 486;  People v. Bustillo, 220 A.D.3d 814, 815, 198 N.Y.S.3d 155;  People v. Capuano, 211 A.D.3d 860, 860, 178 N.Y.S.3d 455).

Accordingly, the Supreme Court properly designated the defendant a level two sex offender.

DILLON, J.P., GENOVESI, LANDICINO and MCCORMACK, JJ., concur.