| People v Bretan |
| 2011 NY Slip Op 04020 [84 AD3d 906] |
| May 10, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Russell Bretan, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Lois Cullen Valerio and RichardLongworth Hecht of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Westchester County (Cohen, J.),entered August 14, 2009, which, after a hearing, designated him a level three sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed.
In July 2003, the defendant pleaded guilty to several charges involving child pornography inthe United States District Court for the Southern District of New York. Following his releasefrom prison, the County Court, Westchester County, held a hearing pursuant to the Sex OffenderRegistration Act (hereinafter SORA) to determine the defendant's SORA classification. Thepresentence investigation report from the defendant's federal conviction stated that the defendanthad offered to pay an undercover police officer to make a video of a 10-year-old girl beingsexually abused. He also sought to purchase two other videos, which purportedly featured girlsages 6, 10, and 15. Other pornographic images depicting children were found on the defendant'scomputer after his arrest. A police officer testified that the defendant's apartment building waswithin sight of a children's playground, and the defendant's parole officer testified that there werechildren living in the defendant's apartment building.
In an order entered August 14, 2009, the County Court designated the defendant as a levelthree sex offender, noting that there were three or more victims in this case, that there was atleast one victim who was 10 years old or younger, and that the victims were strangers to thedefendant. The County Court also found that the location of the defendant's apartment wasinappropriate. Based on these factors, the defendant qualified as a level two sex offender.However, the County Court granted the People's request for an upward departure to level three,finding that the defendant's attempt to have a video featuring the violent sexual abuse of a10-year-old girl made for him was an aggravating factor. The defendant appeals.
Contrary to the defendant's contention, the County Court properly assessed him 20 pointsunder risk factor 7 (relationship with the victim) because the children depicted in pornographicvideos are victims (see People vJohnson, 11 NY3d 416, 418, 421-422 [2008]). Likewise, the defendant was properlyassessed 30 points under risk factors 3 (number of victims) and 5 (age of victims), respectively.Further, the County Court properly assessed another 10 points under risk factor 15 (livingsituation) because the defendant's apartment location was inappropriate (see e.g. People v Gerald, 16 Misc 3d106, 108 [2007]).[*2]
A departure from the presumptive risk level is generallyonly warranted where "there exists an aggravating or mitigating factor of a kind, or to a degree,that is otherwise not adequately taken into account by the guidelines" (Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary, at 4 [2006]; People v King, 74 AD3d 1162[2010]). Relying upon People vJohnson (11 NY3d 416 [2008]), the defendant contends that the assessment of pointsunder risk factors 3, 5, and 7 due to his possession of child pornography was a result that theauthors of the Risk Assessment Guidelines (hereinafter the Guidelines) may not have intended orforeseen. Therefore, the defendant claims that a downward departure was warranted. By contrast,the People contend that the County Court properly granted their request for an upward departurebased on circumstances not taken into account by the Guidelines. Considering both themitigating factors and the aggravating factors set forth, under the particular circumstances of thiscase, we find that the aggravating factors outweigh the mitigating factors to such an extent thanan upward departure from the presumptive risk level is warranted. Accordingly, the defendantwas properly designated a level three sex offender. Dillon, J.P., Leventhal, Chambers and Austin,JJ., concur.