Opinion
2013-11-14
The PEOPLE of the State of New York, Respondent, v. William WEIHRICH, Appellant.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.
Before: ROSE, J.P., LAHTINEN, STEIN and GARRY, JJ.
STEIN, J.
Appeal from an order of the Supreme Court (Lamont, J.), entered January 6, 2012 in Albany County, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.
In 2008, defendant pleaded guilty to one count of possessing a sexual performance by a child in full satisfaction of an 18–count indictment and was sentenced to a prison term of 2 to 4 years. In anticipation of his release, the Board of Examiners of Sex Offenders prepared a risk assessment instrument that placed him within the presumptive risk level II category. Following a hearing, Supreme Court assessed additional points in the categories of number of victims, relationship with victims, conduct while confined and acceptance of responsibility, rendering defendant a presumptive risk level III sex offender. Supreme Court so classified defendant, and he now appeals.
We affirm. Defendant argues that Supreme Court improperly assessed the additional points and that he should be classified as a risk level II sex offender, as recommended by the Board. We disagree. Supreme Court is not bound by the Board's recommendation and may depart therefrom when the facts and circumstances in the record warrant it ( see People v. Grimm, 107 A.D.3d 1040, 1042, 967 N.Y.S.2d 189 [2013],lv. denied21 N.Y.3d 1042, 972 N.Y.S.2d 540, 995 N.E.2d 856 [2013];People v. Whyte, 89 A.D.3d 1407, 1408, 933 N.Y.S.2d 459 [2011] ). As to the number of victims, children depicted in pornographic images are properly found to constitute multiple separate victims ( see People v. Fazio, 106 A.D.3d 1291, 1291, 964 N.Y.S.2d 915 [2013],lv. granted22 N.Y.3d 852, –––N.Y.S.2d ––––, ––– N.E.2d ––––, 2013 N.Y. Slip Op. 88258, 2013 WL 5614349 [Oct. 15, 2013]; People v. Poole, 90 A.D.3d 1550, 1550–1551, 935 N.Y.S.2d 773 [2011];People v. Johnson, 47 A.D.3d 140, 144, 846 N.Y.S.2d 541 [2007],affd. 11 N.Y.3d 416, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ). Inasmuch as there is no dispute in the record before us that defendant possessed pornographic material depicting more than three different children, clear and convincing evidence supports Supreme Court's assessment of 30 points under this risk factor ( see People v. Fazio, 106 A.D.3d at 1291, 964 N.Y.S.2d 915;People v. Poole, 90 A.D.3d at 1550–1551, 935 N.Y.S.2d 773). The record further reflects that defendant did not know any of the children depicted and, therefore, 20 points were properly assessed under the category concerning defendant's relationship with the victims ( see People v. Johnson, 11 N.Y.3d 416, 419–421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008];People v. Poole, 90 A.D.3d at 1551, 935 N.Y.S.2d 773). Further, while the Board considered defendant's disciplinary record to be satisfactory, Supreme Court was not bound by its recommendation as to this factor ( see People v. Bush, 105 A.D.3d 1179, 1181, 964 N.Y.S.2d 270 [2013],lv. denied21 N.Y.3d 860, 971 N.Y.S.2d 251, 993 N.E.2d 1273 [2013] ), and the assessment of 10 points for conduct while incarcerated is supported by clear and convincing evidence ( see id.; People v. Catchings, 56 A.D.3d 1181, 1182, 867 N.Y.S.2d 618 [2008],lv. denied12 N.Y.3d 701, 876 N.Y.S.2d 348, 904 N.E.2d 503 [2009] ). Finally, given defendant's statements set forth in the case summary and presentence investigation report, as well as his discharge from sex offender treatment programs due to unsatisfactory progress, the record supports the assessment of 15 points under the factor concerning acceptance of responsibility ( see People v. Rogowski, 96 A.D.3d 1113, 1114, 945 N.Y.S.2d 810 [2012];People v. Legall, 63 A.D.3d 1305, 1306, 883 N.Y.S.2d 318 [2009],lv. denied13 N.Y.3d 706, 887 N.Y.S.2d 4, 915 N.E.2d 1182 [2009] ). As a result, defendant's risk assessment score of 155 fell well within the range of a risk level III sex offender, and we discern no basis to disturb Supreme Court's classification of defendant as such.
Even if the points for multiple victims should not have been assessed here, defendant's presumptive risk assessment score would be 125, which still places him within the risk level III category ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 3 [2006] ).
ORDERED that the order is affirmed, without costs.
ROSE, J.P., LAHTINEN and GARRY, JJ., concur.