Opinion
117 KA 20-00255
02-05-2021
The PEOPLE of the State of New York, Respondent, v. Christopher FREEMAN, Defendant-Appellant.
RYAN JAMES MULDOON, AUBURN, FOR DEFENDANT-APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
RYAN JAMES MULDOON, AUBURN, FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
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 three risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ). We reject defendant's contention that County Court erred in granting the People's request for an upward departure to a level three risk. "[W]hen the People establish, by clear and convincing evidence (see Correction Law § 168-n [3] ), the existence of aggravating factors that are, ‘as a matter of law, of a kind or to a degree not adequately taken into account by the [risk assessment] guidelines,’ a court ‘must exercise its discretion by weighing the aggravating and [any] mitigating factors to determine whether the totality of the circumstances warrants a departure’ from a sex offender's presumptive risk level" ( People v. Havlen , 167 A.D.3d 1579, 1579, 89 N.Y.S.3d 511 [4th Dept. 2018], quoting People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). Here, we conclude that the determination to grant an upward departure was based on clear and convincing evidence of certain aggravating factors, namely the quantity and sadomasochistic nature of the child pornography used by defendant (see People v. Hackrott , 170 A.D.3d 1646, 1647, 94 N.Y.S.3d 907 [4th Dept. 2019], lv denied 33 N.Y.3d 908, 2019 WL 2457348 [2019] ; People v. Tatner , 149 A.D.3d 1595, 1595-1596, 53 N.Y.S.3d 445 [4th Dept. 2017], lv denied 29 N.Y.3d 916, 2017 WL 3908393 [2017] ), defendant's admitted fantasies involving children (see generally People v. Millar , 45 A.D.3d 1329, 1330, 845 N.Y.S.2d 608 [4th Dept. 2007], lv denied 10 N.Y.3d 701, 853 N.Y.S.2d 542, 883 N.E.2d 369 [2008] ), and the extremely young age of the children depicted in the pornography (see People v. McCabe , 142 A.D.3d 1379, 1380-1381, 38 N.Y.S.3d 352 [4th Dept. 2016] ).