        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1330
KA 13-01958
PRESENT: CENTRA, J.P., FAHEY, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIMOTHY D. SCHEIFLA, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Erie County Court (Kenneth F. Case,
J.), entered October 3, 2013. The order determined that defendant is
a level two risk pursuant to the Sex Offender Registration Act.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Defendant appeals from an order determining that he
is a level two risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). The Board of Examiners of Sex
Offenders determined that defendant was a level one risk with a total
risk factor score of 60, but recommended an upward departure to a
level two risk. County Court recalculated defendant’s presumptive
risk level, assigning points for risk factors 3 (more than three
victims) and 7 (relationship with the victim, i.e., a stranger),
bringing defendant to a total risk factor score of 110, which is a
level three risk. The court then ordered a downward departure from a
level three risk to a level two risk. We affirm.

     Defendant contends that there was insufficient evidence for the
court to assess points against defendant for risk factors 3 and 7. We
disagree. The People provided clear and convincing evidence of risk
factors 3 and 7, based on the number of images and videos depicting
child pornography that were in defendant’s possession (see People v
Poole, 90 AD3d 1550, 1550-1551; see generally Correction Law § 168-n
[3]; People v Johnson, 11 NY3d 416, 420; People v Vaillancourt, 112
AD3d 1375, 1375-1376, lv denied 22 NY3d 864).

     We further conclude that the court had the discretion to order a
downward departure from its recalculated presumptive risk level (see
generally People v Johnson, 120 AD3d 1542, 1542, lv denied 24 NY3d
910). It is well settled that “ ‘[a] departure from the presumptive
                                 -2-                          1330
                                                         KA 13-01958

risk level is warranted where there exists an aggravating or
mitigating factor of a kind or to a degree, not otherwise adequately
taken into account by the [SORA] guidelines’ ” (People v Moore, 115
AD3d 1360, 1360-1361; see People v Scott, 111 AD3d 1274, 1275, lv
denied 22 NY3d 861). Here, the record establishes that defendant
identified an appropriate mitigating factor in favor of a downward
departure not adequately accounted for by the SORA guidelines, and
that defendant proved by the preponderance of the evidence the facts
necessary to support that downward departure from his recalculated
presumptive risk level (see Johnson, 120 AD3d at 1542).




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
