Opinion
467 Ind. No. SMZ-70710/21 Case No. 2022–04326
06-13-2023
The PEOPLE of the State of New York, Respondent, v. Lothar MAELZNER, Defendant–Appellant.
Miedel & Mysliwiec LLP, New York (Florian Miedel of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Paul A. Andersen of counsel), for respondent.
Miedel & Mysliwiec LLP, New York (Florian Miedel of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Paul A. Andersen of counsel), for respondent.
Kapnick, J.P., Friedman, Gesmer, Gonza´lez, Pitt–Burke, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about September 15, 2022, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
Clear and convincing evidence supports the court's discretionary upward departure (see People v. Gillotti , 119 A.D.3d 1390, 989 N.Y.S.2d 752 [2014] ), and the record is sufficient to allow appropriate factual findings and legal conclusions in that regard (see e.g., People v. Larkin, 66 A.D.3d 592, 886 N.Y.S.2d 804 [1st Dept. 2009], lv denied 14 N.Y.3d 704, 2010 WL 606966 [2010] ). The evidence supported a concern for public safety and the potential for reoffense under all the circumstances.
Defendant possessed over 27,000 images and 13 videos of child pornography that he had collected from the dark web (which provides greater access to pornography than the ordinary Internet) over a period of three to four years (see People v. Wanko, 193 A.D.3d 430, 146 N.Y.S.3d 99 [1st Dept. 2021], lv denied 37 N.Y.3d 910, 2021 WL 4190211 [2021] ; People v. Almonte, 175 A.D.3d 1203, 106 N.Y.S.3d 863 [1st Dept. 2019] ). These factors distinguish this case from our recent decision in People v. Donshik , 215 A.D.3d 597, 189 N.Y.S.3d 70 (1st Dept. 2023). The images in defendant's possession depicted children ranging from 6 to 16 years old and involved disturbing content. Furthermore, during an interview with Homeland Security agents defendant made admissions about an incident in which he appeared to be interested in paying for sex with a minor. The unremarkable mitigating factors cited by defendant failed to outweigh the aggravating factors supporting an upward departure.