People v. Carroll

102 A.D.3d 848, 959 N.Y.S.2d 503

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 2013
• Status: Published

Opinion

Appeal by the defendant from an order of the County Court, Westchester County (Cacace, J.), entered September 8, 2011, 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 challenges his designation as a level two sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C) following his conviction in the United States District Court for the Southern District of New York on a charge of possession of child pornography.

Contrary to the defendant’s contention, the County Court properly assessed him 30 points under risk factor 3 (number of victims) and 20 points under risk factor 7 (relationship with victim) (see People v Johnson, 11 NY3d 416, 419-421 [2008]; People v Harding, 87 AD3d 627 [2011]; People v Bretan, 84 AD3d 906, 907 [2011]). Further, based on the defendant’s own statements regarding his use of alcohol, the County Court properly assessed him 15 points under risk factor 11 (drug or alcohol abuse) (see People v Gulley, 99 AD3d 979 [2012]; People v Murphy, 68 AD3d 832, 833 [2009]; People v Arnold, 35 AD3d 827 [2006]).

To the extent that the defendant established facts that might warrant a downward departure from his presumptive risk level two designation (see People v Johnson, 11 NY3d at 421; People v Bretan, 84 AD3d at 907-908), upon examining all circumstances relevant to the defendant’s risk of reoffense and danger to the community, the County Court providently exercised its discretion in denying the defendant’s application for a downward departure (see People v Wyatt, 89 AD3d 112, 127-128 [2011]; People v Harding, 87 AD3d at 627; People v Bretan, 84 AD3d at 907-908; People v Stella, 71 AD3d 970 [2010]). Balkin, J.P., Lott, Austin and Sgroi, JJ., concur.