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

52
KA 15-01077
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DAMISO WOOTEN, DEFENDANT-APPELLANT.


SCHIANO LAW OFFICE, P.C., ROCHESTER (CHARLES A. SCHIANO, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Alex R.
Renzi, J.), dated March 27, 2015. 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
(Correction Law § 168 et seq.). Contrary to defendant’s contention,
points may be assigned under risk factors 3 (number of victims) and 7
(relationship with victim) to a child pornography offender despite the
fact that the offender had no contact with the victims (see People v
Gillotti, 23 NY3d 841, 854-855; People v Morel-Baca, 127 AD3d 833,
833-834). We reject defendant’s further contention that Supreme Court
erred in denying his request for a downward departure from his
presumptive risk level. Even assuming, arguendo, that defendant met
his burden of establishing the existence of an appropriate mitigating
factor by a preponderance of the evidence, we conclude that the court
providently exercised its discretion in denying defendant’s request
for a downward departure (see People v Butler, 129 AD3d 1534, 1535, lv
denied 26 NY3d 904; People v Worrell, 113 AD3d 742, 742-743).




Entered:    February 5, 2016                       Frances E. Cafarell
                                                   Clerk of the Court
