Opinion
04-27-2017
The PEOPLE of the State of New York, Respondent, v. Tory BELL, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Richard Joselson and Joanne Legano Ross of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Richard Joselson and Joanne Legano Ross of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
Judgment, Supreme Court, New York County (Jill Konviser, J.), rendered May 13, 2014, convicting defendant, upon his plea of guilty, of promoting a sexual performance by a child as a sexually motivated felony, and sentencing him to a term of one year, unanimously modified, on the law, to reflect that defendant was sentenced to a definite term of one year, and otherwise affirmed. Order, Supreme Court, New York County (same court and Justice), entered on or about January 7, 2015, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
The record supports the court's assessment of 30 and 20 points, respectively, under the risk factors for having three or more victims and being a stranger to the victim, based on defendant's viewing of over 80 images and videos of child pornography on his computer, despite the fact that defendant did not have any contact with the victims (see People v. Labarbera, 140 A.D.3d 463, 464, 37 N.Y.S.3d 2 [1st Dept.2016]lv. denied 28 N.Y.3d 902, 2016 WL 4742524 [2016] ).
The court properly exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). Defendant did not demonstrate any mitigating factors not already taken into account in the risk assessment instrument that would warrant a downward departure, given the egregiousness of the underlying offense, which included not only the possession but the dissemination of child pornography.
The sentence should be modified to the extent indicated in order to effectuate the intent of the plea agreement, which provided that defendant would receive a one-year definite term of incarceration.
SWEENY, J.P., ACOSTA, RENWICK, MOSKOWITZ, KAHN, JJ., concur.