PEOPLE v. DESPOT (2023)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Steven W. Paynter, J.), dated August 10, 2021, 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 entered a plea of guilty in federal court to receipt of child pornography (see 18 USC § 2252[a][2]).  After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the Supreme Court designated the defendant a level two sex offender.  On appeal, the defendant challenges the court's assessment of points under risk factor 3 (number of victims) and risk factor 7 (relationship with victims), and, alternatively, argues that the court improperly denied his request for a downward departure from the presumptive risk level.

The Supreme Court properly assessed the defendant points under risk factors 3 and 7, since the People established by clear and convincing evidence that the material 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. Negron, 202 A.D.3d 1113, 159 N.Y.S.3d 903;  People v. Smith, 187 A.D.3d 1228, 1229, 131 N.Y.S.3d 572).

The Supreme Court also properly denied the defendant's 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 at 858–860, 994 N.Y.S.2d 1, 18 N.E.3d 701;  People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930), a downward departure was not warranted under the totality of the circumstances presented in this case (see People v. Smith, 187 A.D.3d 1228, 131 N.Y.S.3d 572;  People v. Baker, 181 A.D.3d 908, 909, 122 N.Y.S.3d 325).  While those circumstances included some mitigating facts, the defendant's risk level designation did not constitute an overassessment of his risk in light of the number and nature of the images he possessed, and the long duration of his conduct (see People v. Smith, 187 A.D.3d at 1229, 131 N.Y.S.3d 572;  People v. Baker, 181 A.D.3d at 909, 122 N.Y.S.3d 325;  People v. Rossano, 140 A.D.3d 1042, 1043, 35 N.Y.S.3d 364).

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

BARROS, J.P., IANNACCI, FORD and WAN, JJ., concur.