People v Myles
2022 NY Slip Op 00980 [202 AD3d 549]
February 15, 2022
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 30, 2022


[*1]
 The People of the State of New York, Respondent,
v
Robert Myles, Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Lorca Morello of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Shane Magnetti of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J,), entered on or about September 15, 2017, 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 properly assessed points under factors 3 and 7, because the children depicted in the pornography possessed by defendant constituted multiple victims, and because they were strangers to defendant (see People v Gillotti, 23 NY3d 841, 854-860 [2014]; People v Labarbera, 140 AD3d 463, 464 [1st Dept 2016], lv denied 28 NY3d 902 [2016]). The court also providently exercised its discretion in declining to grant a downward departure (see Gillotti, 23 NY3d at 861). The mitigating factors identified by defendant were either already taken into account by the risk assessment instrument or were outweighed by the seriousness and extent of the offense and by circumstances such as that defendant continued to possess child pornography even after being warned against it and undergoing therapy. Concur—Kern, J.P., Oing, Singh, Moulton, González, JJ.