

People v Vitiello (2018 NY Slip Op 01282)





People v Vitiello


2018 NY Slip Op 01282


Decided on February 27, 2018


Appellate Division, First 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 February 27, 2018

Andrias, J.P., Gesmer, Kern, Singh, Moulton, JJ.


5822 99019/15

[*1]The People of the State of New York, Respondent,
vMatthew 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.

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 NY3d 841 [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, __AD3d__, 2018 NY Slip Op 00098 [1st Dept 2018]; People v Velasquez, 143 AD3d 583 [1st Dept 2016], lv denied 28 NY3d 914 [2017]).
We have considered and rejected defendant's remaining arguments.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 27, 2018
CLERK


