People v. Newton

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 [2015] [internal quotation marks and brackets omitted]; see People v Gillotti, 23 NY3d 841 , 861 [2014]; People v Watson, 95 AD3d 978 , 979 [2012]). 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,