People v. Gutschow
Opinion
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Bureau Thomas J.K. Smith, State Reporter
People v Gutschow
2026 NY Slip Op 04718
July 24, 2026
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v
LUCAS A. GUTSCHOW, DEFENDANT-APPELLANT.
Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department
Decided on July 24, 2026
561 KA 25-01136
Present: Lindley, J.P., Bannister, Ogden, Delconte, And Hannah, JJ.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (CHRISTOPHER P. MCCLARY OF COUNSEL), FOR DEFENDANT-APPELLANT.
CHRISTINE K. CALLANAN, DISTRICT ATTORNEY, LYONS (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
Appeal from an order of the Wayne County Court (Richard M. Healy, J.), entered April 23, 2025. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.
[*1]It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). We reject defendant's contention that County Court abused its discretion when it granted the People's request for an upward departure from his presumptive risk level. The People established that defendant had a large quantity of child sexual abuse material as well as his longstanding use of and "self-reported addiction to child [sexual abuse material]" (People v Tatner, 149 AD3d 1595, 1595 [4th Dept 2017], lv denied 29 NY3d 916 [2017] [internal quotation marks omitted]; see People v Walters, 181 AD3d 1106, 1106-1107 [3d Dept 2020]; People v McCabe, 142 AD3d 1379, 1380-1381 [4th Dept 2016]). We conclude that the People established by clear and convincing evidence (see Correction Law § 168-n [3]) the existence of aggravating circumstances not adequately taken into account by the risk assessment guidelines (see Tatner, 149 AD3d at 1595). Furthermore, we cannot conclude that the court, in "weighing the aggravating and mitigating factors," abused its discretion when it granted the People's request for a one-level upward departure (People v Gillotti, 23 NY3d 841, 861 [2014]; see generally People v Decapua, 179 AD3d 1460, 1461 [4th Dept 2020], lv denied 35 NY3d 906 [2020]).
Entered: July 24, 2026
Ann Dillon Flynn
Clerk of the Court
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