People v Newton

People v Newton 2015 NY Slip Op 09416 Decided on December 23, 2015 Appellate Division, Second 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 December 23, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
L. PRISCILLA HALL
JEFFREY A. COHEN
BETSY BARROS, JJ.
2014-10888

[*1]People of State of New York, respondent,

v

Brian J. Newton, appellant.

Robert C. Mitchell, Riverhead, NY (James H. Miller III of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, NY (Philip J. Branigan of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated October 30, 2014, 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 was convicted, after a guilty plea, of 29 counts of possessing a sexual performance by a child (Penal Law § 263.16). At his Sex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA) hearing, he requested a downward departure from his presumptive designation as a level two sex offender on the ground that he did not have physical contact with a victim. The County Court denied the defendant's application.

"In determining a defendant's risk level pursuant to SORA, a downward departure from a sex offender's presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines" (People v Rukasov, 132 AD3d 748, 748 [internal quotation marks and brackets omitted]; see People v Gillotti, 23 NY3d 841, 861; People v Watson, 95 AD3d 978, 979). Here, contrary to the defendant's contention, his presumptive designation as a level two sex offender took into account that he did not have any violent or physical contact with any victim by not assessing him any points under risk factor 1 (use of violence) or risk factor 2 (sexual contact with victim) (see People v Gillotti, 23 NY3d at 857).

Accordingly, the County Court properly determined that the defendant was not entitled to a downward departure and, thus, properly designated him a level two sex offender (see People v Wyatt, 89 AD3d 112; People v Mondo, 88 AD3d 676; People v Padro, 84 AD3d 1046).

DILLON, J.P., HALL, COHEN and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court