Schiano Law Office, P.C., Rochester (Charles A. Schiano, Jr., of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Opinion
MEMORANDUM:
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 N.Y.3d 841, 854–855, 994 N.Y.S.2d 1, 18 N.E.3d 701; People v. Morel–Baca, 127 A.D.3d 833, 833–834, 4 N.Y.S.3d 893). 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 A.D.3d 1534, 1535, 11 N.Y.S.3d 757, lv. denied 26 N.Y.3d 904, 2015 WL 5254753; People v. Worrell, 113 A.D.3d 742, 742–743, 978 N.Y.S.2d 882).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
SMITH, J.P., CARNI, LINDLEY, and DeJOSEPH, JJ., concur.