Opinion
457 KA 16–00954
05-04-2018
The PEOPLE of the State of New York, Respondent, v. Jeffrey T. BERNECKY, 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., CARNI, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ), defendant appeals from an order classifying him as a level two risk. Defendant pleaded guilty to a federal sex offense arising from his possession of more than 8,000 computer files containing images of, inter alia, child pornography involving sex acts between 10– to 12–year–old boys and adults or other boys. Contrary to defendant's contentions, "children depicted in pornographic images are each separate victims for purposes of the Sex Offender Registration Act in general and risk factor 3 in particular" ( People v. Graziano, 140 A.D.3d 1541, 1542, 35 N.Y.S.3d 739 [3d Dept. 2016], lv denied 28 N.Y.3d 909, 2016 WL 6840021 [2016] ; see People v. Gillotti, 23 N.Y.3d 841, 859–860, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; People v. Wooten, 136 A.D.3d 1305, 1306, 24 N.Y.S.3d 550 [4th Dept. 2016] ), and " ‘the plain terms of [risk] factor 7 authorize the assessment of points based on a child pornography offender's stranger relationship with the children featured in his or her child pornography files, and thus points can be properly assessed under that factor due to an offender's lack of prior acquaintance with the children depicted in the files’ " ( People v. Tutty, 156 A.D.3d 1444, 1444–1445, 65 N.Y.S.3d 850 [4th Dept. 2017] ; see Gillotti, 23 N.Y.3d at 859–860, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Johnson, 11 N.Y.3d 416, 419–421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ).
Contrary to defendant's further contention, County Court did not abuse its discretion in denying his request for a downward departure from his presumptive risk level. Although a defendant's response to treatment, "if exceptional" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006] ), may constitute a mitigating factor to serve as the basis for a downward departure, we conclude that, here, defendant failed to prove by a preponderance of the evidence that his response to treatment was exceptional (see People v. Butler, 129 A.D.3d 1534, 1534–1535, 11 N.Y.S.3d 757 [4th Dept. 2015], lv denied 26 N.Y.3d 904, 2015 WL 5254753 [2015] ). Defendant otherwise "failed to establish by a preponderance of the evidence the existence of mitigating factors not adequately taken into account by the guidelines" ( People v. Lewis, 156 A.D.3d 1431, 1432, 67 N.Y.S.3d 739 [4th Dept. 2017] ; see People v. Nilsen, 148 A.D.3d 1688, 1689, 50 N.Y.S.3d 199 [4th Dept. 2017], lv denied 29 N.Y.3d 912, 2017 WL 2468575 [2017] ), particularly in light of the fact that he possessed an extraordinary number of pornographic images, including depictions of sexual acts involving children, violence, and bestiality (see generally People v. Poole, 90 A.D.3d 1550, 1551, 935 N.Y.S.2d 773 [4th Dept. 2011] ). We therefore conclude, upon examining all of the relevant circumstances, that the court providently exercised its discretion in denying defendant's request for a downward departure (see People v. Smith, 122 A.D.3d 1325, 1326, 995 N.Y.S.2d 890 [4th Dept. 2014] ).