Opinion
2014-05-21
PEOPLE of State of New York, respondent, v. David ROSEN, appellant.
Zachary Margulis–Ohnuma, New York, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Jennifer Spencer, Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.
Zachary Margulis–Ohnuma, New York, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Jennifer Spencer, Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Westchester County (Cacace, J.), entered June 10, 2013, 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 designated a level two sex offender based upon his conviction of promoting an obscene sexual performance by a child and possessing an obscene sexual performance by a child. The defendant contends that he was improperly assessed 80 points by the court, five points more than the 75 points required for adjudicating him a level two sex offender, based upon the number of victims and the fact that children depicted on child pornography accessed by him were strangers to him. Contrary to the defendant's contention, the assessment of those points was supported by clear and convincing evidence in the record ( see People v. Johnson, 11 N.Y.3d 416, 422, 872 N.Y.S.2d 379, 900 N.E.2d 930;People v. Brown, 116 A.D.3d 1017, 983 N.Y.S.2d 900;People v. Bretan, 84 A.D.3d 906, 907, 922 N.Y.S.2d 542).
Further, the defendant failed to establish by a preponderance of the evidence any ground for a downward departure from his presumptive risk level ( see People v. Worrell, 113 A.D.3d 742, 743, 978 N.Y.S.2d 882;People v. Roldan, 111 A.D.3d 909, 975 N.Y.S.2d 681; People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85). RIVERA, J.P., AUSTIN, ROMAN and HINDS–RADIX, JJ., concur.