People v Carroll
2013 NY Slip Op 00317 [102 AD3d 848]
January 23, 2013
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 27, 2013

The People of the State of New York, Respondent,
Peter Carroll, Appellant.

[*1] Matthew D. Myers, New York, N.Y., for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Laurie G. Sapakoff, 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 September 8, 2011, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

The defendant challenges his designation as a level two sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C) following his conviction in the United States District Court for the Southern District of New York on a charge of possession of child pornography.

Contrary to the defendant's contention, the County Court properly assessed him 30 points under risk factor 3 (number of victims) and 20 points under risk factor 7 (relationship with victim) (see People v Johnson, 11 NY3d 416, 419-421 [2008]; People v Harding, 87 AD3d 627 [2011]; People v Bretan, 84 AD3d 906, 907 [2011]). Further, based on the defendant's own statements regarding his use of alcohol, the County Court properly assessed him 15 points under risk factor 11 (drug or alcohol abuse) (see People v Gulley, 99 AD3d 979 [2012]; People v Murphy, 68 AD3d 832, 833 [2009]; People v Arnold, 35 AD3d 827 [2006]).

To the extent that the defendant established facts that might warrant a downward departure from his presumptive risk level two designation (see People v Johnson, 11 NY3d at 421; People v Bretan, 84 AD3d at 907-908), upon examining all circumstances relevant to the defendant's risk of reoffense and danger to the community, the County Court providently exercised its discretion in denying the defendant's application for a downward departure (see People v Wyatt, 89 AD3d 112, 127-128 [2011]; People v Harding, 87 AD3d at 627; People v Bretan, 84 AD3d at 907-908; People v Stella, 71 AD3d 970 [2010]). Balkin, J.P., Lott, Austin and Sgroi, JJ., concur.