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People v. Stella

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


March 23, 2010

PEOPLE OF STATE OF NEW YORK, RESPONDENT,
v.
JOHN W. STELLA, APPELLANT.

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated July 30, 2008, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

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.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, HOWARD MILLER RANDALL T. ENG, JJ.

DECISION & ORDER

ORDERED that the order is affirmed, without costs or disbursements.

In October 2006 the defendant possessed, on his computer, multiple pornographic images of boys under the age of 16, posing in lewd positions and exposing their genitals. He pleaded guilty to one count of attempted possession of a sexual performance by a child, in full satisfaction of the indictment. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), the defendant was designated a level two sex offender. We affirm.

The County Court providently exercised its discretion in designating the defendant a level two sex offender. The children depicted in the pornographic images that the defendant possessed are "victims" within the meaning of SORA (see People v Johnson, 11 NY3d 416, 420; People v Perahia, 57 AD3d 865, 866; People v Worley, 57 AD3d 753, 754; People v Villane, 49 AD3d 517; People v Lawless, 44 AD3d 738). Moreover, the defendant did not demonstrate that special circumstances existed which would warrant a departure from the presumptive risk level two designation (see People v Maiello, 32 AD3d 463; People v Guaman, 8 AD3d 545).

RIVERA, J.P., FLORIO, MILLER and ENG, JJ., concur.

20100323

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