DEFENDANT PROPERLY ASSESSED 80 POINTS FOR CHILD PORNOGRAPHY IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK LEVEL PROCEEDING, CRITERIA EXPLAINED, DETERMINATION REVERSED HOWEVER BECAUSE COUNTY COURT DID NOT CONSIDER DOWNWARD DEPARTURE REQUEST (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s request for a downward departure in this Sex Offender Registration Act (SORA) risk level assessment should have been considered. Defendant was properly assessed 80 points in this child pornography case:

​

The Court of Appeals has noted that “the children depicted in child pornography are necessarily counted as victims under [risk] factor 3, and nothing in that factor’s plain terms suggests otherwise. After all, factor 3 permits the assessment of 30 points [where, as here,] [t]here were three or more victims’ involved in a defendant’s current sex crime” … . The Court of Appeals has also made it clear that “the plain terms of [risk] factor 7 authorize the assessment of points based on a child pornography offender’s stranger relationship with the children featured in his or her child pornography files, and thus points can be properly assessed under that factor due to an offender’s lack of prior acquaintance with the children depicted in the files” … . Here, the People established by clear and convincing evidence that the children depicted in the images on defendant’s computer were strangers to defendant. Consequently, the court properly concluded that “defendant should be assessed 30 points under risk factor 3, number of victims,’ based on the numerous child victims depicted in the images he possessed . . . and 20 points under risk factor 7, relationship with victim, stranger,’ [inasmuch] as defendant did not know his child victims.”

We agree with defendant, however, that the court erred in failing to consider his request for a downward departure from the presumptive level two risk yielded by his 80-point total score on the risk assessment instrument … .. We therefore reverse the order and remit the matter to County Court for a determination of whether defendant met his “initial burden of (1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence’ ” …  and, if so, for the court to exercise its discretion whether to grant defendant’s request for a downward departure … . People v Tutty, 2017 NY Slip Op 09029, Fourth Dept 12-22-17

CRIMINAL LAW (SORA, DEFENDANT PROPERLY ASSESSED 80 POINTS FOR CHILD PORNOGRAPHY IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK LEVEL PROCEEDING, DETERMINATION REVERSED HOWEVER BECAUSE COUNTY COURT DID NOT CONSIDER DOWNWARD DEPARTURE REQUEST (FOURTH DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT PROPERLY ASSESSED 80 POINTS FOR CHILD PORNOGRAPHY IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK LEVEL PROCEEDING, DETERMINATION REVERSED HOWEVER BECAUSE COUNTY COURT DID NOT CONSIDER DOWNWARD DEPARTURE REQUEST (FOURTH DEPT))/DOWNWARD DEPARTURE (SORA, DEFENDANT PROPERLY ASSESSED 80 POINTS FOR CHILD PORNOGRAPHY IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK LEVEL PROCEEDING, DETERMINATION REVERSED HOWEVER BECAUSE COUNTY COURT DID NOT CONSIDER DOWNWARD DEPARTURE REQUEST (FOURTH DEPT))