Opinion
174 KA 16–00086
02-09-2018
The PEOPLE of the State of New York, Respondent, v. Seles VARIN, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:
Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ). Defendant contends that the People failed to notify defendant 10 days prior to the SORA hearing that they intended to seek a determination different from that recommended by the Board of Examiners of Sex Offenders (Board), as required by Correction Law § 168–n (3). We reject that contention inasmuch as the record establishes that the People did not seek a determination different from that recommended by the Board. Rather, the People sought a determination that defendant is a level two risk, as recommended by the Board. Moreover, even if County Court erred in assessing points under risk factors 3 and 7 and defendant was therefore a presumptive level one risk, the court determined, in the alternative, that an upward departure from a presumptive level one classification was warranted. We conclude that the determination to grant an upward departure was "based on clear and convincing evidence of aggravating factors to a degree not taken into account by the risk assessment instrument" ( People v. Sherard, 73 A.D.3d 537, 537, 903 N.Y.S.2d 3 [1st Dept. 2010], lv denied 15 N.Y.3d 707, 2010 WL 3583171 [2010] ), including, inter alia, "the quantity and nature of the child pornography used by defendant, the lengthy period of time over which he collected and viewed it, and the extremely young children depicted therein" ( People v. McCabe, 142 A.D.3d 1379, 1380–1381, 38 N.Y.S.3d 352 [4th Dept. 2016] ).
We reject defendant's alternative contention that the court erred in denying his request for a downward departure to level one. Defendant failed to prove, by a preponderance of the evidence, a "mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]; see generally People v. Wooten, 136 A.D.3d 1305, 1306, 24 N.Y.S.3d 550 [4th Dept. 2016] ; People v. Smith, 122 A.D.3d 1325, 1325–1326, 995 N.Y.S.2d 890 [4th Dept. 2014] ). Contrary to defendant's contention, his acceptance of responsibility, engagement in sex offender treatment and lack of a prior criminal history were adequately taken into account in the risk assessment instrument (see People v. Scone, 145 A.D.3d 1327, 1329, 42 N.Y.S.3d 700 [3d Dept. 2016] ; People v. DeDona, 102 A.D.3d 58, 71, 954 N.Y.S.2d 541 [2d Dept. 2012] ; see also People v. Jewell, 119 A.D.3d 1446, 1448–1449, 989 N.Y.S.2d 766 [4th Dept. 2014], lv denied 24 N.Y.3d 905, 2014 WL 4637185 [2014] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.