Opinion
5388 SCID 99002/16
01-09-2018
The PEOPLE of the State of New York, Respondent, v. Daryl RYAN, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Kristian D. Amundsen 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 (Kristian D. Amundsen of counsel), for respondent.
Friedman, J.P., Richter, Gesmer, Kern, Moulton, JJ.
Order, Supreme Court, Bronx County (Efrain Alvarado, J.), entered on or about September 28, 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 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 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; People v. Velasquez, 143 A.D.3d 583, 40 N.Y.S.3d 60 [1st Dept. 2016], lv denied 28 NY3d 914, 2017 WL 525560 [2017] ). 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 particularly disturbing nature of some of the material, the duration of defendant's retention of the material, and his trading of the material with others. The mitigating factors cited by defendant were accounted for in the risk assessment instrument or were outweighed by the seriousness of his conduct.