Opinion
No. 3395 Index No. 0755/21 Case No. 2023-03574
01-07-2025
The People of the State of New York, Respondent, v. Elroy Robinson Defendant-Appellant.
Twyla Carter, The Legal Aid Society, New York (Ji Hyun Rhim of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Larry Glasser of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Ji Hyun Rhim of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Larry Glasser of counsel), for respondent.
Before: Singh, J.P., Kapnick, Scarpulla, Pitt-Burke, O'Neill Levy, JJ.
Order, Supreme Court, Bronx County (Laurence E. Busching, J.), entered on or about October 27, 2022, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
Defendant was found in possession of more than 5,000 images of child pornography and numerous videos, some of which depicted horrific, sadomasochistic acts and involved infants and children under 10 years old. Some of the videos were an hour or more in length, and defendant specifically admitted to masturbating to these images and videos.
The court providently exercised its discretion in declining to grant defendant a downward departure from the presumptive level two designation to level one (see People v Field, 214 A.D.3d 418, 419 [1st Dept 2023], lv denied 40 N.Y.3d 902 [2023]; see generally People v Gillotti, 23 N.Y.3d 841, 860 [2014]). The mitigating factors defendant cites were adequately accounted for by the risk assessment instrument or outweighed by the egregiousness of his conduct (see People v Morales, 223 A.D.3d 850, 851 [2d Dept 2024], lv denied 41 N.Y.3d 911 [2024]; People v Bonnemere, 201 A.D.3d 475, 475 [1st Dept 2022]).
Further, the record as a whole supports the court's upward departure to level three. Supreme Court properly found that the risk assessment instrument underassessed defendant's risk of reoffense and failed adequately to account for the facts of this case (Gillotti, 23 N.Y.3d at 853). Here, the extent and depravity of the materials defendant possessed, and with which he found sexual gratification, are not adequately addressed by the risk assessment instrument and are proper bases for an upward departure (see Field, 214 A.D.3d at 419-420).