People v. Galeana

People v Galeana (2022 NY Slip Op 05340) People v Galeana 2022 NY Slip Op 05340 Decided on September 28, 2022 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on September 28, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ANGELA G. IANNACCI, J.P. REINALDO E. RIVERA JOSEPH A. ZAYAS DEBORAH A. DOWLING, JJ. 2019-13197 [*1]The People of the State of New York, respondent, v Gilberto Galeana, appellant. Clare J. Degnan, White Plains, NY (Salvatore A. Gaetani of counsel), for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio of counsel), for respondent. DECISION & ORDER Appeal by the defendant from an order of the County Court, Westchester County (Susan Cacace, J.), dated October 2, 2019, 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. The defendant entered a plea of guilty to promoting an obscene sexual performance by a child and possessing an obscene sexual performance by a child. After a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6-C), the County Court designated the defendant a level two sex offender. The defendant appeals, arguing that the court should have granted his application for a downward departure to a level one risk designation. Contrary to the defendant's contention, his risk level was properly assessed. "Although in some cases involving offenders who possessed child pornography, the assessment of points under risk factors 3 and 7 might result in an overassessment of the risk a defendant poses to the community," a downward departure is not warranted as a matter of discretion under the circumstances here (People v Smith, 187 AD3d 1228, 1229; see People v Rossano, 140 AD3d 1042, 1043). Accordingly, we affirm the order designating the defendant a level two sex offender. IANNACCI, J.P., RIVERA, ZAYAS and DOWLING, JJ., concur. ENTER: Maria T. Fasulo Clerk of the Court