People v McVey

People v McVey 2017 NY Slip Op 05185 Decided on June 27, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 27, 2017
Friedman, J.P., Webber, Gesmer, Kern, JJ.
4365 99010/16

[*1]The People of the State of New York, Respondent,

v

Timothy McVey, Defendant-Appellant.

Calhoun & Lawrence, LLP, White Plains (Clinton W. Calhoun, III of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Robert Mciver of counsel), for respondent.

Order, Supreme Court, Bronx County (Efrain Alvarado, J.), entered on or about September 15, 2016, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly exercised its discretion in granting the People's request for an upward departure based on the egregiousness and extent of defendant's involvement with child pornography, which were not adequately accounted for in the risk assessment instrument, and which outweighed the mitigating factors cited by defendant (see People v Velasquez, 143 AD3d 583 [1st Dept 2016], lv denied 28 NY3d 914 [2017]). We reject defendant's argument that defendants in child pornography possession cases are inherently prejudiced by assessment under the Risk Assessment Instrument, and the upward or downward departure protocol (see People v Gillotti, 23 NY3d 841, 855 [2014]; People v Johnson, 11 NY3d 416, 420-421 [2008]). We also reject defendant's assertion that the court improperly failed to take into account the "totality of the circumstances" when weighing the aggravating and mitigating circumstances of defendant's case (see People v Gillotti, 23 NY3d at 861).

We have considered and rejected defendant's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 27, 2017

CLERK