Opinion
547 KA 18–01501
07-05-2019
The PEOPLE of the State of New York, Respondent v. David MANGAN, Defendant–Appellant.
CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT–APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRITTANY GROME ANTONACCI OF COUNSEL), FOR RESPONDENT.
CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT–APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRITTANY GROME ANTONACCI OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
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. ). The Board of Examiners of Sex Offenders determined that defendant was a level one risk with a total risk factor score of 30, but it recommended an upward departure to a level two risk. At the People's request, County Court assessed additional points under risk factor 7 for conduct directed at a stranger, bringing defendant to a total risk factor score of 50, still a level one risk. The court thereafter ordered an upward departure to a level two risk. We affirm.
Defendant contends that there was insufficient evidence for the court to assess points against him under risk factors 5 and 7. We disagree. The People provided clear and convincing evidence supporting an assessment of points for risk factors 5 and 7, properly relying on the case summary to show that the victim in the image of child pornography in defendant's possession was younger than the age of 10 and was a stranger to defendant (see People v. Vasquez, 149 A.D.3d 1584, 1585, 52 N.Y.S.3d 806 [4th Dept. 2017], lv denied 29 N.Y.3d 916, 2017 WL 3908423 [2017] ; see generally Correction Law § 168–n [3 ]; People v. Mingo, 12 N.Y.3d 563, 571–572, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ; People v. Johnson, 11 N.Y.3d 416, 420, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ).
Contrary to defendant's additional contention, we conclude that "[t]he court's discretionary upward departure [to a level two risk] was based on clear and convincing evidence of aggravating factors to a degree not taken into account by the risk assessment instrument" ( People v. McCabe, 142 A.D.3d 1379, 1380, 38 N.Y.S.3d 352 [4th Dept. 2016] [internal quotation marks omitted]; see People v. Tidd, 128 A.D.3d 1537, 1537, 9 N.Y.S.3d 517 [4th Dept. 2015], lv denied 25 N.Y.3d 913, 2015 WL 3971352 [2015] ). In particular, the People presented evidence of defendant's contemporaneous conviction of a separate sex offense involving a police investigator posing as a minor victim, which "provides the basis for an upward departure inasmuch as it is indicative that the offender poses an increased risk to public safety" ( People v. Colsrud, 155 A.D.3d 1601, 1602, 63 N.Y.S.3d 771 [4th Dept. 2017] [internal quotation marks omitted]; see People v. Ryan, 96 A.D.3d 1692, 1693, 947 N.Y.S.2d 869 [4th Dept. 2012], lv denied 20 N.Y.3d 929, 957 N.Y.S.2d 688, 981 N.E.2d 284 [2012] ). The People also presented evidence of other aggravating factors justifying an upward departure, including defendant's interest in role-playing as a minor and his practice of having a sexual partner pretend to be a minor child during intercourse (see People v. Sczerbaniewicz, 126 A.D.3d 1348, 1349, 5 N.Y.S.3d 644 [4th Dept. 2015] ; see generally People v. Hands, 37 A.D.3d 441, 441, 829 N.Y.S.2d 224 [2d Dept. 2007] ).
To the extent that defendant established the existence of valid mitigating factors not taken into account by the risk assessment instrument, we conclude that they were plainly outweighed by the aggravating factors (see Sczerbaniewicz, 126 A.D.3d at 1349–1350, 5 N.Y.S.3d 644 ).