PEOPLE v. QUINTO (2025)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Nassau County (Robert A. McDonald, J.), entered August 7, 2017, 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 his plea of guilty, of possessing a sexual performance by a child (Penal Law § 263.16).  After a hearing held pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the Supreme Court, inter alia, granted the People's application for an upward departure from the defendant's presumptive risk level one to risk level two and designated the defendant a level two sex offender.

An upward departure from the presumptive risk level is permitted only if the court determines, upon clear and convincing evidence, “that there exists an aggravating ․ factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 4 [2006];  see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Hernandez, 204 A.D.3d 946, 164 N.Y.S.3d 883).  Here, the People established, by clear and convincing evidence, the existence of aggravating factors warranting an upward departure from the defendant's presumptive risk level, including the substantial number of files of child pornography the defendant possessed and the lengthy period of time the defendant collected child pornography (see People v. Kopstein, 186 A.D.3d 757, 758–759, 126 N.Y.S.3d 920;  People v. Baker, 181 A.D.3d 908, 909, 122 N.Y.S.3d 325;  People v. Paul, 168 A.D.3d 1004, 1005, 92 N.Y.S.3d 104;  see also People v. Labrake, 121 A.D.3d 1134, 1135, 993 N.Y.S.2d 193).

Accordingly, the Supreme Court providently exercised its discretion in granting the People's application for an upward departure and designating the defendant a level two sex offender.

IANNACCI, J.P., CHRISTOPHER, WARHIT and GOLIA, JJ., concur.