PEOPLE v. KANTROW (2026)

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated June 3, 2024, which, after a hearing, designated the defendant a level two sexually violent offender pursuant to Correction Law article 6–C.

ORDERED that the order is modified, on the law and the facts, by deleting the provision thereof designating the defendant a level two sexually violent offender, and substituting therefor a provision designating the defendant a level two sex offender;  as so modified, the order is affirmed, without costs or disbursements.

The defendant was convicted in Colorado of sexual exploitation of a minor (see Colo Rev Stat Ann § 18–6–403[3][b] ).  After a hearing conducted pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the County Court designated the defendant a level two sexually violent offender.  The defendant appeals.

The County Court properly assessed the defendant points under risk factors 3 and 7 of the risk assessment instrument, since the People established by clear and convincing evidence that the material possessed by the defendant depicted 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. Benchocron, 226 A.D.3d 832, 833, 209 N.Y.S.3d 486).  Further, the court properly assessed 30 points under risk factor 5, as the People established by clear and convincing evidence that the defendant possessed pornographic images displaying children 10 years old or younger (see People v. Butler, 232 A.D.3d 683, 684, 222 N.Y.S.3d 528;  People v. Barry, 213 A.D.3d 779, 779–780, 182 N.Y.S.3d 758).

The County Court properly denied the defendant's application for a downward departure from his presumptive risk level.  While an offender's response to treatment, if exceptional, can form the basis for a downward departure, the defendant failed to demonstrate by a preponderance of the evidence that his response to treatment was exceptional (see People v. Hammack, 225 A.D.3d 795, 796, 207 N.Y.S.3d 658;  People v. Flores–Hernandez, 219 A.D.3d 1533, 1534, 196 N.Y.S.3d 771).  Contrary to the defendant's contention, he failed to demonstrate how having support from his family established a lower likelihood of reoffense or danger to the community (see People v. Wanzer, 218 A.D.3d 805, 806, 192 N.Y.S.3d 689;  People v. Gunter, 217 A.D.3d 788, 790, 191 N.Y.S.3d 143).

Moreover, although in some cases involving possession of child pornography 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 at 860, 994 N.Y.S.2d 1, 18 N.E.3d 701), a downward departure was not warranted under the totality of the circumstances presented in this case, as there was no overassessment of the defendant's risk level (see People v. Walsh, 247 A.D.3d 1073, 1074, 251 N.Y.S.3d 353;  People v. Benchocron, 226 A.D.3d at 833, 209 N.Y.S.3d 486).

However, as the People correctly concede, the defendant should not have been designated a sexually violent offender (see People v. Edwards, 246 A.D.3d 37, 45, 241 N.Y.S.3d 465).  Accordingly, we modify the order to remove that designation.

The defendant's remaining contention is without merit.

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