Opinion
No. 2022-01053 No. 2017-13473
02-16-2022
The People of the State of New York, respondent, v. Kyaw Aung, appellant.
Janet E. Sabel, New York, NY (Angie Louie and Whitney A. Robinson of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Ellen Abbot, and Candi Green of counsel), for respondent.
Janet E. Sabel, New York, NY (Angie Louie and Whitney A. Robinson of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Ellen Abbot, and Candi Green of counsel), for respondent.
BETSY BARROS, J.P. VALERIE BRATHWAITE NELSON ROBERT J. MILLER PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Queens County (Gia L. Morris, J.), dated December 6, 2017, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.
ORDERED that the order is affirmed, without costs or disbursements.
In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C), the defendant was designated a level two sex offender following his conviction of possessing a sexual performance by a child. On appeal, the defendant challenges the assessment of points under risk factors 3 (number of victims) and 7 (relationship with victim) and alternatively argues that the Supreme Court erred in denying his request for a downward departure.
The Supreme Court properly assessed points under risk factors 3 and 7. The People established by clear and convincing evidence that the images possessed by the defendant depicted far more than three child victims, and that the children in the images were strangers to the defendant (see People v Gillotti, 23 N.Y.3d 841, 859-860; People v Carman, 194 A.D.3d 760, 762; People v Waldman, 178 A.D.3d 1107; People v Rivas, 173 A.D.3d 786, 787; People v Reuter, 140 A.D.3d 1143; People v Morel-Baca, 127 A.D.3d 833). Although it has been recognized that the assessment of points under risk factors 3 and 7 may result in an overassessment of the risk posed to the community by certain offenders whose crime was the possession of images of child sexual abuse (see People v Gillotti, 23 N.Y.3d at 861; People v Smith, 187 A.D.3d 1228, 1229), here, there was no overassessment and a downward departure is not warranted (see People v Rivas, 173 A.D.3d at 787; People v Smith, 187 A.D.3d at 1229).
Accordingly, the Supreme Court properly designated the defendant a level two sex offender.
BARROS, J.P., BRATHWAITE NELSON, MILLER and WOOTEN, JJ., concur.