Opinion
12829 Ind. No. 99064/17 Case No. 2018-2721
01-12-2021
The PEOPLE of the State of New York, Respondent, v. SCOTT E., Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Hunter Haney of counsel of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Felicia A. Yancey of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Hunter Haney of counsel of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Felicia A. Yancey of counsel), for respondent.
Renwick, J.P., Kern, Mazzarelli, Kennedy, Shulman, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about May 4, 2018, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
The court providently exercised its discretion in granting the request for an upward departure from level one to level three. Clear and convincing evidence established the presence of aggravating factors, demonstrating a risk of harm to children, that were not otherwise adequately taken into account by the risk assessment instrument, including factors specified in the 2012 position statement on child pornography of the Board of Examiners of Sex Offenders (see People v. Labarbera, 140 A.D.3d 463, 464, 37 N.Y.S.3d 2 [1st Dept. 2016], lv denied 28 N.Y.3d 902, 40 N.Y.S.3d 350, 63 N.E.3d 70 [2016] ). Defendant's conduct did not consist of mere possession of child pornography. In a series of incidents, he also actively sought sexual contact with children. He most recently came to the attention of law enforcement after he approached and inappropriately touched a 10–year–old child in a swimming pool, among other conduct. He also made significant admissions about his interest in having sexual relationships with children.
The mitigating factors defendant cites do not outweigh the aggravating factors to the extent of warranting a level one or two adjudication.