People v. Wooten , 24 N.Y.S.3d 550 ( 2016 )

Appeal from an order of the Supreme Court, Monroe County (Alex R. Renzi, J.), dated March 27, 2015. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration 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 risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). Contrary to defendant’s contention, points may be assigned under risk factors 3 (number of victims) and 7 (relationship with victim) to a child pornography offender despite the fact that the offender had no contact with the victims (see People v Gillotti, 23 NY3d 841, 854-855 [2014]; People v Morel-Baca, 127 AD3d 833, 833-834 [2015]). We reject defendant’s further contention that Supreme Court erred in denying his request for a downward departure from his presumptive risk level. Even assuming, arguendo, that defendant met his burden of establishing the existence of an appropriate mitigating factor by a preponderance of the evidence, we conclude that the court providently exercised its discretion in denying defendant’s request for a downward departure (see People v Butler, 129 AD3d 1534, 1535 [2015], lv denied 26 NY3d 904 [2015]; People v Worrell, 113 AD3d 742, 742-743 [2014]).

Present — Smith, J.P., Carni, Lindley and DeJoseph, JJ.