PEOPLE v. STELLA

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PEOPLE of State of New York, respondent, v. John W. STELLA, appellant.

Decided: March 23, 2010

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, HOWARD MILLER, and RANDALL T. ENG, JJ. Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel), for respondent.

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated July 30, 2008, 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.

In October 2006 the defendant possessed, on his computer, multiple pornographic images of boys under the age of 16, posing in lewd positions and exposing their genitals. He pleaded guilty to one count of attempted possession of a sexual performance by a child, in full satisfaction of the indictment. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), the defendant was designated a level two sex offender. We affirm.

The County Court providently exercised its discretion in designating the defendant a level two sex offender. The children depicted in the pornographic images that the defendant possessed are “victims” within the meaning of SORA (see People v. Johnson, 11 N.Y.3d 416, 420, 872 N.Y.S.2d 379, 900 N.E.2d 930; People v. Perahia, 57 A.D.3d 865, 866, 868 N.Y.S.2d 924; People v. Worley, 57 A.D.3d 753, 754, 870 N.Y.S.2d 385; People v. Villane, 49 A.D.3d 517, 851 N.Y.S.2d 880; People v. Lawless, 44 A.D.3d 738, 842 N.Y.S.2d 729). Moreover, the defendant did not demonstrate that special circumstances existed which would warrant a departure from the presumptive risk level two designation (see People v. Maiello, 32 A.D.3d 463, 819 N.Y.S.2d 483; People v. Guaman, 8 A.D.3d 545, 778 N.Y.S.2d 704).

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