PEOPLE v. MIERISCH (2025)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), entered February 7, 2024, 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 in the United States District Court for the District of Rhode Island, upon his plea of guilty, of possession of child pornography (see 18 USC § 2252[a][4][B];  [b][2]).  After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the Supreme Court assessed the defendant 80 points on the risk assessment instrument (hereinafter the RAI), which corresponded with a designation as a presumptive level two sex offender.  The court denied the defendant's application for a downward departure from the presumptive risk level and designated him a level two sex offender.  On appeal, the defendant challenges the assessment of points under risk factor 3 (number of victims) and risk factor 7 (relationship with victims) and, alternatively, contends that the court should have granted his application for a downward departure.

The Supreme Court correctly assessed the defendant points under risk factors 3 and 7, since the People established by clear and convincing evidence that the child pornography possessed by the defendant depicted the images of far more than three child victims, and that the children in the images were strangers to the defendant (see People v. Gillotti, 23 N.Y.3d 841, 859–860, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Smith, 187 A.D.3d 1228, 1229, 131 N.Y.S.3d 572).  Contrary to the defendant's contention, the assessment of points under risk factors 3 and 7 in child pornography cases does not violate his right to due process (see People v. Gillotti, 23 N.Y.3d at 860, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Hammack, 225 A.D.3d 795, 796, 207 N.Y.S.3d 658;  People v. Field, 214 A.D.3d 418, 419, 184 N.Y.S.3d 338).

Furthermore, the Supreme Court properly denied the defendant's application for a downward departure from his presumptive risk level.  Although in some cases involving offenders who possessed child pornography, the assessment of points under risk factors 3 and 7 might result in an overassessment of the risk a defendant poses to the community, a downward departure is not warranted here, given, among other things, the number and nature of the images and video files possessed by the defendant (see People v. Hammack, 225 A.D.3d at 796, 207 N.Y.S.3d 658;  People v. Evelyn–Moe, 217 A.D.3d 889, 890, 191 N.Y.S.3d 684;  cf.  People v. Sestito, 195 A.D.3d 869, 870, 145 N.Y.S.3d 849).

Furthermore, “[w]hile a defendant's response to sex offender treatment may qualify as a ground for a downward departure where the response is ‘exceptional’ (Guidelines at 17), the defendant failed to demonstrate by a preponderance of the evidence that his response to treatment, while positive, was exceptional” (People v. Coleman, 225 A.D.3d 792, 794, 207 N.Y.S.3d 602 [internal quotation marks omitted];  see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 17 [2006] [hereinafter Guidelines];  People v. Gonsales, 203 A.D.3d 760, 761, 160 N.Y.S.3d 620).

Contrary to the defendant's contention, the alleged support provided by his family and friends and his history of stable employment were adequately taken into account by the Guidelines under risk factor 15 (living or employment situation) (see People v. Gavalo, 235 A.D.3d 785, 786, 227 N.Y.S.3d 659;  People v. Parisi, 212 A.D.3d 666, 668, 181 N.Y.S.3d 620;  People v. Emery, 204 A.D.3d 944, 945, 164 N.Y.S.3d 888).  Moreover, the defendant failed to demonstrate how the support of his family and friends established a lower likelihood of reoffense or danger to the community (see People v. Gavalo, 235 A.D.3d at 786, 227 N.Y.S.3d 659;  People v. Parisi, 212 A.D.3d at 668, 181 N.Y.S.3d 620).

Furthermore, the fact that this was the defendant's only offense was taken into account by risk factor 9, which assesses points against an offender based on the nature and extent of his or her prior criminal history (see People v. Curry, 158 A.D.3d 52, 62, 68 N.Y.S.3d 483;  People v. Rocano–Quintuna, 149 A.D.3d 1114, 1115, 53 N.Y.S.3d 170).  Moreover, the fact that the defendant will remain under specialized supervision for five years was also accounted for on the RAI because the defendant was scored 0 points under risk factor 14, rather than the 15 points he would have received for release without supervision, or the 5 points he would have received for release with nonspecialized supervision (see People v. Curry, 158 A.D.3d at 62, 68 N.Y.S.3d 483).

Accordingly, the Supreme Court properly denied the defendant's application for a downward departure and designated him a level two sex offender.

CONNOLLY, J.P., WOOTEN, VOUTSINAS and MCCORMACK, JJ., concur.