Opinion
03-20-2024
PEOPLE of State of New York, respondent, v. Alex HAMMACK, appellant.
Twyla Carter, New York, NY (Nancy E. Little of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and William H. Branigan of counsel; Ariselly Fernandez on the brief), for respondent.
Twyla Carter, New York, NY (Nancy E. Little of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and William H. Branigan of counsel; Ariselly Fernandez on the brief), for respondent.
ANGELA G. IANNACCI, J.P., LINDA CHRISTOPHER, PAUL WOOTEN, JANICE A. TAYLOR, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Queens County (Gary F. Miret, J.), dated May 5, 2022, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.
ORDERED that the order is affirmed, without costs or disbursements.
The defendant was convicted in a California court, upon his plea of guilty, of possession of obscene material based upon his possession of child pornography. In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6–C), the Supreme Court, after a hearing, designated the defendant a level two sex offender. On appeal, the defendant challenges the assessment of points under risk factor 3 (number of victims) and risk factor 7 (relationship with victims) and, alternatively, argues that the court should have granted his application for a downward departure.
[1, 2] The Supreme Court correctly assessed the defendant points under risk factors 3 and 7, since the People established by clear and convincing evidence that the child pornography possessed by the defendant depicted the images of far more than three child victims, and that the children in the images were strangers to the defendant (see People v. Gillotti, 23 N.Y.3d 841, 859–860, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Smith, 187 A.D.3d 1228, 1229, 131 N.Y.S.3d 572). Contrary to the defendant’s contention, the assessment of points under risk factors 3 and 7 in child pornography cases does not violate his right to due process (see People v. Gillotti, 23 N.Y.3d at 860, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Field, 214 A.D.3d 418, 419, 184 N.Y.S.3d 338; see generally People v. Parris, 153 A.D.3d 68, 76, 60 N.Y.S.3d 169).
[3, 4] Furthermore, the Supreme Court properly denied the defendant’s application for a downward departure from his presumptive risk level. Although in some cases involving offenders who possessed child pornography, the assessment of points under risk factors 3 and 7 might result in an overassessment of the risk a defendant poses to the community, a downward departure is not warranted here, given, among other things, the number and nature of the images possessed by the defendant (see People v. Evelyn–Moe, 217 A.D.3d 889, 890, 191 N.Y.S.3d 684; People v. Cahill, 210 A.D.3d 1115, 1117, 179 N.Y.S.3d 299; cf. People v. Sestito, 195 A.D.3d 869, 870, 145 N.Y.S.3d 849) "While an offender’s response to treatment, if exceptional, can form the basis for a downward departure, the defendant [in this case] failed to demonstrate by a preponderance of the evidence that his response to treatment was exceptional" (People v. Wilcox, 178 A.D.3d 1107, 1109, 117 N.Y.S.3d 310 [citations omitted]; see People v. Cartiglia, 169 A.D.3d 725, 726, 92 N.Y.S.3d 121). Finally, based on the totality of the circumstances, the defendant’s absence of additional criminal history following the underlying conviction in California did not warrant a downward departure (see People v. Williams, 204 A.D.3d 710, 711, 163 N.Y.S.3d 861).
Accordingly, the Supreme Court properly designated the defendant a level two sex offender.
IANNACCI, J.P., CHRISTOPHER, WOOTEN and TAYLOR, JJ, concur.