Opinion
2014-10888.
12-23-2015
PEOPLE of State of New York, respondent, v. Brian J. NEWTON, appellant.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Philip J. Branigan of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Philip J. Branigan of counsel), for respondent.
Opinion
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated October 30, 2014, 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, after a guilty plea, of 29 counts of possessing a sexual performance by a child (Penal Law § 263.16). At his Sex Offender Registration Act (see Correction Law art. 6–C; hereinafter SORA) hearing, he requested a downward departure from his presumptive designation as a level two sex offender on the ground that he did not have physical contact with a victim. The County Court denied the defendant's application.
“In determining a defendant's risk level pursuant to SORA, a downward departure from a sex offender's presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines” (People v. Rukasov, 132 A.D.3d 748, 748, 17 N.Y.S.3d 772 [internal quotation marks and brackets omitted]; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584). Here, contrary to the defendant's contention, his presumptive designation as a level two sex offender took into account that he did not have any violent or physical contact with any victim by not assessing him any points under risk factor 1 (use of violence) or risk factor 2 (sexual contact with victim) (see People v. Gillotti, 23 N.Y.3d at 857, 994 N.Y.S.2d 1, 18 N.E.3d 701).
Accordingly, the County Court properly determined that the defendant was not entitled to a downward departure and, thus, properly designated him a level two sex offender (see People v. Wyatt, 89 A.D.3d 112, 931 N.Y.S.2d 85; People v. Mondo, 88 A.D.3d 676, 930 N.Y.S.2d 482; People v. Padro, 84 A.D.3d 1046, 922 N.Y.S.2d 808).
DILLON, J.P., HALL, COHEN and BARROS, JJ., concur.