People v. Wooten

Appellate Division of the Supreme Court of New York

People v. Wooten

136 A.D.3d 1305, 24 N.Y.S.3d 550

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 5, 2016

StatusPublished

This text of 136 A.D.3d 1305 (People v. Wooten) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Wooten, 136 A.D.3d 1305, 24 N.Y.S.3d 550 (N.Y. Ct. App. 2016).

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Opinion

Appeal from an order of the Supreme Court, Monroe County (Alex R. Renzi, J.), dated March 27, 2015. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

[1306]*1306Memorandum: 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.). Contrary to defendant’s contention, points may be assigned under risk factors 3 (number of victims) and 7 (relationship with victim) to a child pornography offender despite the fact that the offender had no contact with the victims (see People v Gillotti, 23 NY3d 841, 854-855 [2014]; People v Morel-Baca, 127 AD3d 833, 833-834 [2015]). We reject defendant’s further contention that Supreme Court erred in denying his request for a downward departure from his presumptive risk level. Even assuming, arguendo, that defendant met his burden of establishing the existence of an appropriate mitigating factor by a preponderance of the evidence, we conclude that the court providently exercised its discretion in denying defendant’s request for a downward departure (see People v Butler, 129 AD3d 1534, 1535 [2015], lv denied 26 NY3d 904 [2015]; People v Worrell, 113 AD3d 742, 742-743 [2014]).

Present — Smith, J.P., Carni, Lindley and DeJoseph, JJ.

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Appeal from an order of the Supreme Court, Monroe County (Alex R. Renzi, J.), dated March 27, 2015. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

[1306]*1306Memorandum: 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.). Contrary to defendant’s contention, points may be assigned under risk factors 3 (number of victims) and 7 (relationship with victim) to a child pornography offender despite the fact that the offender had no contact with the victims (see People v Gillotti, 23 NY3d 841, 854-855 [2014]; People v Morel-Baca, 127 AD3d 833, 833-834 [2015]). We reject defendant’s further contention that Supreme Court erred in denying his request for a downward departure from his presumptive risk level. Even assuming, arguendo, that defendant met his burden of establishing the existence of an appropriate mitigating factor by a preponderance of the evidence, we conclude that the court providently exercised its discretion in denying defendant’s request for a downward departure (see People v Butler, 129 AD3d 1534, 1535 [2015], lv denied 26 NY3d 904 [2015]; People v Worrell, 113 AD3d 742, 742-743 [2014]).

Present — Smith, J.P., Carni, Lindley and DeJoseph, JJ.

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136 A.D.3d 1305, 24 N.Y.S.3d 550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-wooten-nyappdiv-2016.

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