Summary
In People v Poole (90 AD3d 1550 [4th Dept 2011]), the Fourth Department held that points may be imposed under factor 3 based on the number of children depicted in child pornography files possessed by a child pornography offender (see id. at 1550).
Summary of this case from People v. GillottiOpinion
2011-12-23
The PEOPLE of the State of New York, Respondent, v. Thomas J. POOLE, Defendant–Appellant.
Heaton & Venuti, LLP, Geneva (Mark A. Venuti of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of Counsel), for Respondent.
Heaton & Venuti, LLP, Geneva (Mark A. Venuti of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of Counsel), for Respondent.
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.
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.). We reject defendant's contention that County Court erred in assessing 30 points against him under risk factor 3, for the number of victims. It is well established that children depicted in pornographic images constitute “victims” for the purposes of SORA ( see People v. Johnson, 47 A.D.3d 140, 142–143, 846 N.Y.S.2d 541, affd. 11 N.Y.3d 416, 872 N.Y.S.2d 379, 900 N.E.2d 930; People v. Bretan, 84 A.D.3d 906, 907, 922 N.Y.S.2d 542; People v. Perahia, 57 A.D.3d 865, 868 N.Y.S.2d 924) and, here, defendant admitted that he possessed approximately 1,900 images and 300 videos depicting child pornography at the time of his arrest. The People therefore established by the requisite clear and convincing evidence that the crime in question involved three or more victims ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 10 [2006]; see generally § 168–n [3]; People v. Pettigrew, 14 N.Y.3d 406, 409, 901 N.Y.S.2d 569, 927 N.E.2d 1053; People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983). There is no merit to defendant's further contention that, inasmuch as he merely possessed child pornography, he should not have been assessed 20 points under risk factor 7, for a crime that “was directed at a stranger” (Risk Assessment Guidelines and Commentary, at 12; see Johnson, 11 N.Y.3d at 419–421, 872 N.Y.S.2d 379, 900 N.E.2d 930). Inasmuch as defendant admitted that he did not know any of the children depicted in the pornographic images, the court properly assessed points under that risk factor ( see Johnson, 11 N.Y.3d at 419–421, 872 N.Y.S.2d 379, 900 N.E.2d 930; see generally Mingo, 12 N.Y.3d at 572, 883 N.Y.S.2d 154, 910 N.E.2d 983).
Finally, we conclude that “defendant failed to present clear and convincing evidence of special circumstances justifying a downward departure” ( People v. McDaniel, 27 A.D.3d 1158, 1159, 810 N.Y.S.2d 723, lv. denied 7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241; see People v. Fredendall, 83 A.D.3d 1545, 921 N.Y.S.2d 606), particularly in light of defendant's admission that many of the pornographic images at issue depicted violence ( see generally Bretan, 84 A.D.3d at 907–908, 922 N.Y.S.2d 542).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.