People v Buckley, 2019 NY Slip Op 07861 [176 AD3d 650]

October 31, 2019

Appellate Division, First Department

[*1]

The People of the State of New York, Respondent,

v

Timothy Buckley, Appellant.

Justine M. Luongo, The Legal Aid Society, New York (Rachel L. Pecker of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.

Order, Supreme Court, New York County (Juan M. Merchan, J.), rendered April 27, 2017, which adjudicated defendant a level two offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court providently exercised its discretion when it declined to grant a downward departure ( see People v Gillotti , 23 NY3d 841 [2014]). The mitigating factors cited by defendant, including the psychiatric report he submitted, were adequately taken into account by the risk assessment instrument or outweighed by aggravating factors, including the egregiousness of the underlying child pornography offense ( see People v Labarbera , 140 AD3d 463 [1st Dept 2016], lv denied 28 NY3d 902 [2016]). We do not find that the assignment of points under the risk factors for number of victims and victimization of strangers overassessed defendant’s risk of reoffense. In any event, the record also supports the court’s alternative holding that, even if defendant were to be deemed a level one offender based on his point score, the court would grant an upward departure to level two, in light of the aggravating circumstances ( see People v Ryan , 157 AD3d 463 [1st Dept 2018], lv denied 31 NY3d 904 [2018]). Concur—Friedman, J.P., Kapnick, Kern, Singh, JJ..