Opinion
2020–06404
03-17-2021
PEOPLE of State of New York, respondent, v. Ali MORALES, appellant.
Randall D. Unger, Kew Gardens, NY, for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill, Ellen C. Abbot, and Eunice Villantoy of counsel), for respondent.
Randall D. Unger, Kew Gardens, NY, for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill, Ellen C. Abbot, and Eunice Villantoy of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, BETSY BARROS, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Queens County (Stephanie Zaro, J.), dated July 13, 2020, 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.
In this proceeding pursuant to the Sex Offender Registration Act (see Correction Law art 6–C), the Supreme Court, after a hearing, designated the defendant a level two sex offender based upon the assessment of a total of 90 points. 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, in effect, that the court should have granted his request for a downward departure.
Contrary to the defendant's contention, the Supreme Court properly assessed 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 images of 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 ; People v. Bolan, 186 A.D.3d 1273, 1274, 127 N.Y.S.3d 891 ; People v. Benton, 185 A.D.3d 1103, 1104–1105, 125 N.Y.S.3d 206 ; People v. Worrell, 183 A.D.3d 602, 603, 122 N.Y.S.3d 356 ).
The defendant failed to establish his entitlement to a downward departure. "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" ( People v. Smith, 187 A.D.3d at 1229, 131 N.Y.S.3d 572 ; see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ), here, the defendant failed to prove, by a preponderance of the evidence, the existence of an appropriate mitigating factor relating to the particular circumstances of his possession of child pornography that would warrant a downward departure (see People v. Smith, 187 A.D.3d at 1229, 131 N.Y.S.3d 572 ; People v. Bolan, 186 A.D.3d at 1274, 127 N.Y.S.3d 891 ; People v. Benton, 185 A.D.3d at 1105, 125 N.Y.S.3d 206 ).
The defendant's remaining contentions are not properly before this Court.
Accordingly, the Supreme Court properly designated the defendant a level two sex offender.
DILLON, J.P., AUSTIN, BARROS, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.