Opinion
06-27-2017
The PEOPLE of the State of New York, Respondent, v. Timothy McVEY, Defendant–Appellant.
Calhoun & Lawrence, LLP, White Plains (Clinton W. Calhoun, III of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Robert Mciver of counsel), for respondent.
Calhoun & Lawrence, LLP, White Plains (Clinton W. Calhoun, III of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Robert Mciver of counsel), for respondent.
FRIEDMAN, J.P., WEBBER, GESMER, KERN, JJ.
Order, Supreme Court, Bronx County (Efrain Alvarado, J.), entered on or about September 15, 2016, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
The court properly exercised its discretion in granting the People's request for an upward departure based on the egregiousness and extent of defendant's involvement with child pornography, which were not adequately accounted for in the risk assessment instrument, and which outweighed the mitigating factors cited by defendant (see People v. Velasquez, 143 A.D.3d 583, 40 N.Y.S.3d 60 [1st Dept.2016], lv. denied 28 N.Y.3d 914, 2017 WL 525560 [2017] ). We reject defendant's argument that defendants in child pornography possession cases are inherently prejudiced by assessment under the Risk Assessment Instrument, and the upward or downward departure protocol (see People v. Gillotti, 23 N.Y.3d 841, 855, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; People v. Johnson, 11 N.Y.3d 416, 420–421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ). We also reject defendant's assertion that the court improperly failed to take into account the "totality of the circumstances" when weighing the aggravating and mitigating circumstances of defendant's case (see People v. Gillotti, 23 N.Y.3d at 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).
We have considered and rejected defendant's remaining arguments.