2014 NY Slip Op 05525
N.Y. App. Div. 2nd
2014

The People of the State of New York, Respondent, v John Nethercott, Appellant.

Appellate Division, Second Department, New York

July 30, 2014

2014 NY Slip Op 05525 | 119 AD3d 918

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Monday, October 20, 2014

John F. Ryan, White Plains, N.Y. (Jacqueline F. Oliva of counsel), for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (John J. Carmody and Steven A. Bender of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Westchester County (Molea, J.), dated June 7, 2013, 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 article 6-C) following his conviction of possessing an obscene sexual performance by a child.

Contrary to the defendant‘s contention, the Supreme Court properly assessed 30 points under risk factor 3 (number of victims) and 20 points under risk factor 7 (relationship with victim) (see People v Gillotti, 23 NY3d 841 [2014]; People v Johnson, 11 NY3d 416 [2008]; People v Brown, 116 AD3d 1017 [2014]; People v Poole, 90 AD3d 1550 [2011]). Further, the Supreme Court properly concluded that the defendant failed to establish by a preponderance of the evidence that he was entitled to a downward departure from his presumptive risk level (see People v Jackson, 114 AD3d 739 [2014]; People v Worrell, 113 AD3d 742, 743 [2014]; People v Romero, 113 AD3d 605 [2014]; People v Wyatt, 89 AD3d 112, 128 [2011]). Dickerson, J.P., Leventhal, Cohen and Hinds-Radix, JJ., concur. [Prior Case History: 42 Misc 3d 798.]