| People v Worley |
| 2008 NY Slip Op 09976 [57 AD3d 753] |
| December 16, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v RichardWorley, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy ofcounsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Lott, J.), dated June12, 2007, which, after a hearing, designated him a level three sex offender pursuant to Correction Lawarticle 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The New York Board of Examiners of Sex Offenders (hereinafter the Board) completed a riskassessment instrument to determine the defendant's sex offender status for purposes of the SexOffender Registration Act (hereinafter SORA). The defendant was assessed a total of 75 points,making him a presumptive level two sex offender. However, the Board recommended an upwarddeparture to a level three designation. After a hearing, the Supreme Court designated the defendant alevel three sex offender. We affirm.
Contrary to the defendant's contention on appeal, children depicted in pornographic images are"victims" within the meaning of SORA (seePeople v Johnson, 11 NY3d 416 [2008], affg 47 AD3d 140 [2007]; People v Villane, 49 AD3d 517[2008]; People v Lawless, 44 AD3d738 [2007]). Thus, the defendant was properly assessed points for the age of his victims.However, as correctly conceded by the People, the defendant was erroneously assessed points for ahistory of drug or alcohol abuse (see Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 15 [2006]). Nevertheless, the Supreme Court providently exercised itsdiscretion in upwardly departing from the defendant's presumptive sex offender level and designatinghim a level three sex offender based upon clear and convincing evidence of aggravating factors of adegree not taken into account by the risk assessment instrument and the guidelines (see People v Villane, 49 AD3d 517[2008]; People v Fiol, 49 AD3d834 [2008]).[*2]
The defendant's remaining contentions are without merit.Rivera, J.P., Spolzino, Carni and Leventhal, JJ., concur.