Opinion
10256 Ind. 30033/17
10-31-2019
The PEOPLE of the State of New York, Respondent, v. Timothy BUCKLEY, Defendant–Appellant.
Justine M. Luongo, The Legal Aid Society, New York (Rachel L. Pecker of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.
Justine M. Luongo, The Legal Aid Society, New York (Rachel L. Pecker of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.
Friedman, J.P., Kapnick, Kern, Singh, JJ.
Order, Supreme Court, New York County (Juan M. Merchan, J.), rendered April 27, 2017, which adjudicated defendant a level two offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
The court providently 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] ). The mitigating factors cited by defendant, including the psychiatric report he submitted, were adequately taken into account by the risk assessment instrument or outweighed by aggravating factors, including the egregiousness of the underlying child pornography offense (see People v. Labarbera, 140 A.D.3d 463, 37 N.Y.S.3d 2 [1st Dept. 2016], lv denied 28 N.Y.3d 902, 2016 WL 4742524 [2016] ). We do not find that the assignment of points under the risk factors for number of victims and victimization of strangers overassessed defendant's risk of reoffense. In any event, the record also supports the court's alternative holding that, even if defendant were to be deemed a level one offender based on his point score, the court would grant an upward departure to level two, in light of the aggravating circumstances (see People v. Ryan, 157 A.D.3d 463, 66 N.Y.S.3d 440 [1st Dept. 2018], 31 N.Y.3d 904, 2018 WL 1957488 [2018] ).