| People v Blackman |
| 2010 NY Slip Op 08082 [78 AD3d 803] |
| November 9, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Stephen Blackman, Appellant. |
—[*1]
Appeal by the defendant from an order of the County Court, Westchester County (Cacace,J.), entered February 2, 2010, which, after a hearing, designated him a level two sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The defendant was convicted, upon his plea of guilty, of attempted disseminating indecentmaterial to minors in the first degree and possessing an obscene sexual performance by a child.The underlying offenses involved the defendant's computer communications, over a 10-monthperiod, with an individual he believed to be a 15-year-old male, but who was in fact anundercover police officer. The defendant was arrested when he arrived to meet with the male toengage in sexual relations. A subsequent search of his computer found several images of childpornography. Following a hearing pursuant to Correction Law article 6-C, the County Courtdenied the defendant's request for a downward departure to level one and designated thedefendant a level two sex offender.
The Sex Offender Registration Act: Risk Assessment Guidelines and Commentary(hereinafter the SORA Guidelines) advise that the assessment by the Board of Examiners of SexOffenders (hereinafter the Board) of the risk factors set forth in the risk assessment instrumentgenerally result in a "presumptive" SORA determination (SORA Guidelines, at 4 [2006]; see People v Frosch, 69 AD3d 699[2010]; People v Richardson, 47AD3d 905 [2008]). While a court or the Board has discretion to depart from the presumptiveSORA determination, the SORA Guidelines caution that "in most cases . . .departures will be the exception—not the rule" and advise that departures should not bemade unless the court or Board "concludes that there exists an aggravating or mitigating factor ofa kind, or to a degree, that is otherwise not adequately taken into account by [*2]the guidelines" (SORA Guidelines, at 4 [2006]; see People v Johnson, 11 NY3d416, 421 [2008]; People vFrosch, 69 AD3d 699 [2010]; People v Chandler, 48 AD3d 770 [2008]; People v White, 25 AD3d 677[2006]). To warrant a departure from the presumptive SORA determination, there must be clearand convincing evidence of a special circumstance (see People v Rios, 57 AD3d 501 [2008]; People v Miller, 48 AD3d 774,775 [2008]; People v Abdullah, 31AD3d 515, 516 [2006]).
Here, contrary to the defendant's contention, the County Court properly set forth the basis forits determination, as required under Correction Law § 168-d (3). Moreover, we agree withthe County Court that the dicta in Peoplev Johnson (11 NY3d 416, 421 [2008]), concerning risk factor 7 (relationship withvictim) in which the Court of Appeals observed that increasing the risk level for a defendantconvicted only for possessing child pornography depicting children who were strangers to thedefendant may lead to an "anomalous result" (People v Johnson, 11 NY3d at 421-422), isnot applicable here. As the County Court correctly stated, unlike the defendant in Johnson,here, the defendant not only admittedly possessed child pornography depicting children whowere strangers to him, but he also scheduled a meeting with an individual he believed to be a15-year-old boy, and thus, "exhibited a willingness to act on his compulsions which is contrary tothe situation discussed in Johnson." Furthermore, we discern no mitigating factor that isnot adequately contemplated by the SORA Guidelines which would warrant a downwarddeparture in this case and, thus, we find no basis to disturb the County Court's designation of thedefendant as a level two sex offender. Prudenti, P.J., Angiolillo, Belen and Sgroi, JJ., concur.