People v. Wanko

People v Wanko (2021 NY Slip Op 02079)

People v Wanko

2021 NY Slip Op 02079

Decided on April 01, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 01, 2021
Before: Manzanet-Daniels, J.P., Kern, González, Shulman, JJ.

Ind No. 99073/16 Appeal No. 13493 Case No. 2018-527

[*1]The People of the State of New York, Respondent,

v

Stephen Wanko, Defendant-Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Nancy E. Little of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Polly M. Puner of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about March 28, 2017, which adjudicated defendant a level two offender pursuant to the Sex Offender Registration Act (Correctional Law art 6-C), unanimously affirmed, without costs.

The record supports the court's discretionary upward departure based on clear and convincing evidence establishing the existence of aggravating factors not adequately accounted for by the risk assessment instrument (see People v Gillotti, 23 NY3d 841, 861-862 [2014]). The court reasonably concluded that an increased likelihood of reoffense, not captured in the risk assessment instrument, was indicated by, among other things, the large number of child pornography images and videos possessed by defendant, the disturbing nature of the material, and the duration of defendant's viewing and retention of the material (see e.g. People v Ryan, 157 AD3d 463 [1st Dept 2018], lv denied 31 NY3d 904 [2018]). The mitigating factors cited by defendant do not warrant a different result.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 1, 2021