Opinion
9890 Ind. 99025/18
09-24-2019
The PEOPLE of the State of New York, Respondent, v. Jose ALMONTE, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Nicole Neckles of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Nicole Neckles of counsel), for respondent.
Sweeny, J.P., Richter, Kapnick, Kern, Singh, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about August 3, 2018, 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 providently exercised its discretion in granting the People's request for an upward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ), based on clear and convincing evidence of the egregiousness and extent of defendant's possession of over 11,000 images and 1,500 videos of child pornography. Among other things, defendant possessed a graphic videotape of a violent sexual assault on a very young child, and his "interest in this abhorrent type of pornography demonstrates a danger to children" ( People v. Vitiello, 158 A.D.3d 585, 585, 68 N.Y.S.3d 882 [1st Dept. 2018], lv denied 32 N.Y.3d 905, 84 N.Y.S.3d 860, 109 N.E.3d 1160 [2018] ; see also People v. Velasquez, 143 A.D.3d 583, 583, 40 N.Y.S.3d 60 [1st Dept. 2016], lv denied 28 N.Y.3d 914, 52 N.Y.S.3d 291, 74 N.E.3d 676 [2017] ). Further, there are no mitigating factors that were not adequately taken into account by the risk assessment instrument, or that outweigh the seriousness of the underlying offense.
We have considered and rejected defendant's remaining arguments.