PEOPLE v. TELFORD (2026)

MEMORANDUM AND ORDER

Appeal from an order of the County Court of Washington County (Kelly McKeighan, J.), entered May 17, 2023, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.

In 2016, defendant pleaded guilty to federal charges of distribution of child pornography, receipt of child pornography and possession of child pornography involving prepubescent minors and minors who had not attained 12 years of age, and was sentenced to 96 months in the Federal Bureau of Prisons, to be followed by 20 years of supervised release.  In anticipation of his release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument (hereinafter RAI), assessing 35 points – presumptively classifying defendant as a risk level one sex offender – and recommended an upward departure to a risk level two sex offender.  The People, in turn, prepared an RAI assessing 85 points, which included points not assessed by the Board under risk factors 3 (number of victims) and 7 (stranger), yielding a presumptive risk level two sex offender classification.  Defendant subsequently filed a motion challenging the People's assessment of points under risk factors 3 and 7, asserting that such points resulted in an overestimation of his risk of reoffending, and alternatively sought a downward departure based upon his active participation in a sex offender treatment program, lack of a prior sex offense conviction and his claim of strong family support.  At the ensuing hearing, defendant consented to the People's 85–point scoring but maintained that a downward departure was warranted.  County Court denied defendant's request for a downward departure, finding insufficient proof of genuine mitigating factors, and classified him as a risk level two sex offender.  Defendant appeals.

Defendant contends that County Court abused its discretion in denying his request for a downward departure.  We are unpersuaded.  “As the party seeking the downward departure, defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines” (People v. Smith, 211 A.D.3d 1127, 1128, 179 N.Y.S.3d 424 [3d Dept 2022] [internal quotation marks and citations omitted];  see People v. Wilcox, 244 A.D.3d 1681, 1684, 249 N.Y.S.3d 287 [3d Dept 2025] ).  Defendant's bare conclusory assertion that he has “great family support” from a brother who “lives nearby” and two adult daughters who live in other parts of the country, without further evidence or information regarding the nature of such relationships, is insufficient to demonstrate how such family relationships are a mitigating factor in reducing his risk of reoffending (see People v. Ortiz, 248 A.D.3d 1453, 1457, 256 N.Y.S.3d 787 [3d Dept 2026];  People v. Dawson, 243 A.D.3d 1024, 1026–1027, 245 N.Y.S.3d 451 [3d Dept 2025] ).  As for defendant's participation in a sex offender treatment program, “an offender's response to treatment, if exceptional, can be the basis for a downward departure” (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 17 [2006] ).  Defendant presented evidence of his enrollment and consistent attendance in a sex offender treatment program, however, that evidence demonstrated that he had not completed the program.  As such, this evidence does not provide the compelling evidence required to demonstrate an exceptional response to treatment sufficient to satisfy a downward departure (see People v. Ortiz, 248 A.D.3d at 1457, 256 N.Y.S.3d 787;  People v. Pruitt, 247 A.D.3d 1377, 1378–1379, 250 N.Y.S.3d 747 [3d Dept 2026] ).

To the extent that defendant also contends that the assessment of points under risk factors 3 and 7 resulted in an overestimation of his recidivism risk warranting a downward departure, such contention is unpreserved as defendant did not raise this particular argument as a basis upon which he was seeking a downward departure (see People v. Johnson, 11 N.Y.3d 416, 421–422, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008];  People v. Smith, 211 A.D.3d at 1128, 179 N.Y.S.3d 424).  Were we to consider his argument, we would find no merit to defendant's assertion that his risk of recidivism was overinflated given the abhorrent and sadistic nature of the child pornography images of very young children as described in the case summary, which images defendant traded with a large international network of offenders (see People v. Scrom, 205 A.D.3d 1238, 1240–1241, 168 N.Y.S.3d 181 [3d Dept 2022], lv denied 38 N.Y.3d 914, 2022 WL 4241026 [2022] ).  Upon our review of the record, County Court did not abuse its discretion in concluding that defendant failed to demonstrate that mitigating factors outweighed significant aggravating factors to warrant a downward departure (see People v. Ortiz, 248 A.D.3d at 1456–1457, 256 N.Y.S.3d 787;  People v. Smith, 211 A.D.3d at 1128, 179 N.Y.S.3d 424).

ORDERED that the order is affirmed, without costs.

McShan, J.

Reynolds Fitzgerald, J.P., Ceresia, Mackey and Ryba, JJ., concur.