THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DAMISO WOOTEN DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DAMISO WOOTEN, DEFENDANT–APPELLANT.

KA 15–01077

Decided: February 05, 2016

PRESENT:  SMITH, J.P., CARNI, LINDLEY, AND DEJOSEPH, JJ. SCHIANO LAW OFFICE, P.C., ROCHESTER (CHARLES A. SCHIANO, JR., OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).  Contrary to defendant's contention, points may be assigned under risk factors 3 (number of victims) and 7 (relationship with victim) to a child pornography offender despite the fact that the offender had no contact with the victims (see People v. Gillotti, 23 NY3d 841, 854–855;  People v. Morel–Baca, 127 AD3d 833, 833–834).  We reject defendant's further contention that Supreme Court erred in denying his request for a downward departure from his presumptive risk level.  Even assuming, arguendo, that defendant met his burden of establishing the existence of an appropriate mitigating factor by a preponderance of the evidence, we conclude that the court providently exercised its discretion in denying defendant's request for a downward departure (see People v. Butler, 129 AD3d 1534, 1535, lv denied 26 NY3d 904;  People v. Worrell, 113 AD3d 742, 742–743).

Frances E. Cafarell

Clerk of the Court