| People v Poole |
| 2011 NY Slip Op 09443 [90 AD3d 1550] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Thomas J.Poole, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of counsel), forrespondent.
Appeal from an order of the Ontario County Court (Craig J. Doran, J.), dated November 9,2010. The order determined that defendant is a level two risk pursuant to the Sex OffenderRegistration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level two riskpursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 etseq.). We reject defendant's contention that County Court erred in assessing 30 points againsthim under risk factor 3, for the number of victims. It is well established that children depicted inpornographic images constitute "victims" for the purposes of SORA (see People v Johnson, 47 AD3d140, 142-143 [2007], affd 11 NY3d 416 [2008]; People v Bretan, 84 AD3d 906, 907 [2011]; People v Perahia, 57 AD3d 865[2008]) and, here, defendant admitted that he possessed approximately 1,900 images and 300videos depicting child pornography at the time of his arrest. The People therefore established bythe requisite clear and convincing evidence that the crime in question involved three or morevictims (see Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 10 [2006]; see generally § 168-n [3]; People v Pettigrew, 14 NY3d 406,409 [2010]; People v Mingo, 12NY3d 563, 571 [2009]). There is no merit to defendant's further contention that, inasmuch ashe merely possessed child pornography, he should not have been assessed 20 points under riskfactor 7, for a crime that "was directed at a stranger" (Risk Assessment Guidelines andCommentary, at 12; see Johnson, 11 NY3d at 419-421). Inasmuch as defendant admittedthat he did not know any of the children depicted in the pornographic images, the court properlyassessed points under that risk factor (see Johnson, 11 NY3d at 419-421; seegenerally Mingo, 12 NY3d at 572).
Finally, we conclude that "defendant failed to present clear and convincing evidence ofspecial circumstances justifying a downward departure" (People v McDaniel, 27 AD3d 1158, 1159 [2006], lv denied7 NY3d 703 [2006]; see People vFredendall, 83 AD3d 1545 [2011]), particularly in light of defendant's admission thatmany of the pornographic images at issue depicted violence (see generally Bretan, 84AD3d at 907-908). Present—Fahey, J.P., Peradotto, Lindley, Green and Gorski, JJ.