| People v Rosen |
| 2014 NY Slip Op 03670 [117 AD3d 927] |
| May 21, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of State of New York,Respondent, v David Rosen, Appellant. |
Zachary Margulis-Ohnuma, New York, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Jennifer Spencer,Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Westchester County(Cacace, J.), entered June 10, 2013, which, after a hearing, designated him a level twosex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The defendant was designated a level two sex offender based upon his conviction ofpromoting an obscene sexual performance by a child and possessing an obscene sexualperformance by a child. The defendant contends that he was improperly assessed 80points by the court, five points more than the 75 points required for adjudicating him alevel two sex offender, based upon the number of victims and the fact that childrendepicted on child pornography accessed by him were strangers to him. Contrary to thedefendant's contention, the assessment of those points was supported by clear andconvincing evidence in the record (see People v Johnson, 11 NY3d 416, 422 [2008]; People v Brown, 116 AD3d1017 [2014]; People vBretan, 84 AD3d 906, 907 [2011]).
Further, the defendant failed to establish by a preponderance of the evidence anyground for a downward departure from his presumptive risk level (see People v Worrell, 113AD3d 742, 743 [2014]; People v Roldan, 111 AD3d 909 [2013]; People v Wyatt, 89 AD3d112, 128 [2011]). Rivera, J.P., Austin, Roman and Hinds-Radix, JJ., concur.