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

184
KA 14-00721
PRESENT: PERADOTTO, J.P., CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

THOMAS SCZERBANIEWICZ, DEFENDANT-APPELLANT.


THEODORE W. STENUF, MINOA, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Onondaga County Court (Joseph E.
Fahey, J.), entered April 9, 2014. The order determined that
defendant is a level three 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 three risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). The Board of Examiners of Sex
Offenders (Board) recommended that defendant be adjudicated a level
one risk based on a score of 20 points on the risk assessment
instrument, but it applied an override from that presumptive risk
level based on the fact that defendant had been diagnosed with a
“psychological abnormality” that decreased his ability to control
“impulsive sexual behavior.” Consequently, the Board recommended that
defendant be adjudicated a level three risk. County Court did not
apply the override, but determined that an upward departure from the
presumptive risk level was warranted and adjudicated defendant a level
three risk. We affirm.

     An upward departure is warranted where the People have
established by clear and convincing evidence that there exist
aggravating circumstances of a kind or to a degree not adequately
taken into account by the risk assessment guidelines (see People v
Gillotti, 23 NY3d 841, 861; People v Moore, 115 AD3d 1360, 1360-1361;
People v Vaillancourt, 112 AD3d 1375, 1376, lv denied 22 NY3d 864),
and we conclude that the People have met that burden in this case.
Here, defendant’s case summary establishes that defendant was arrested
in connection with an investigation into a child pornography ring
involving the production and sale of child pornography among
individuals in 28 countries, after attempting to purchase from an
                                 -2-                           184
                                                         KA 14-00721

undercover U.S. Postal Inspector pornographic videos depicting a 12-
year-old girl. At the time of his arrest, defendant possessed over
1,500 images of child pornography, which included images of children
involved in sadistic, masochistic, and otherwise violent acts, as well
as approximately 2,000 images of child erotica. He admitted to
collecting the images over approximately 13 years before his arrest
and to paying for some of the images. He also admitted to
masturbating to sexual fantasies of children while in prison, even
after he had undergone sex offender treatment. “[Those] facts
contained in defendant’s case summary, which were not disputed by
defendant, constitute clear and convincing evidence in support of his
classification as a level [three] offender” (People v Girup, 9 AD3d
913, 913-914).

      Defendant further contends that the court erred in failing to
grant a downward departure from risk level three based on mitigating
factors. We reject that contention. The factors cited by defendant,
primarily the conclusions of treating social workers that he presented
a “low to moderate risk” to reoffend, were outweighed by the
aggravating factors detailed above (see People v Quinones, 123 AD3d
460, 460; People v Van Allen, 287 AD2d 400, 400, lv denied 97 NY2d
709).

     We have considered defendant’s remaining contention and conclude
that it is without merit.




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
