Opinion
5822 Ind. 99019/15
02-27-2018
The PEOPLE of the State of New York, Respondent, v. Matthew VITIELLO, Defendant–Appellant.
Rosemary Herbert, Office of the Appellate Defender, New York (Lauren Stephens–Davidowitz of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Kristian D. Amundsen of counsel), for respondent.
Rosemary Herbert, Office of the Appellate Defender, New York (Lauren Stephens–Davidowitz of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Kristian D. Amundsen of counsel), for respondent.
Andrias, J.P., Gesmer, Kern, Singh, Moulton, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about September 30, 2015, 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 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 that defendant possessed over 100 images of child pornography, including forced intercourse with children as young as three years old. Defendant's interest in this abhorrent type of pornography demonstrates a danger to children (see People v. Ryan, 157 A.D.3d 463, 66 N.Y.S.3d 440 [1st Dept. 2018] ; 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 have considered and rejected defendant's remaining arguments.