People v. Nethercott

119 A.D.3d 918, 989 N.Y.S.2d 900

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 30, 2014
• Docket: 2013-07276
• Status: Published

Opinion

Appeal by the defendant from an order of the Supreme Court, Westchester County (Molea, J.), dated June 7, 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 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 of possessing an obscene sexual performance by a child.

Contrary to the defendant’s contention, the Supreme Court properly assessed 30 points under risk factor 3 (number of victims) and 20 points under risk factor 7 (relationship with victim) (see People v Gillotti, 23 NY3d 841 [2014]; People v Johnson, 11 NY3d 416 [2008]; People v Brown, 116 AD3d 1017 [2014]; People v Poole, 90 AD3d 1550 [2011]). Further, the Supreme Court properly concluded that the defendant failed to establish by a preponderance of the evidence that he was entitled to a downward departure from his presumptive risk level (see People v Jackson, 114 AD3d 739 [2014]; People v Worrell, 113 AD3d 742, 743 [2014]; People v Romero, 113 AD3d 605 [2014]; People v Wyatt, 89 AD3d 112, 128 [2011]).

Dickerson, J.E, Leventhal, Cohen and Hinds-Radix, JJ., concur.