- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- People v. Mulvihill
- Docket
- 2025-03428
- Filed
- May 27, 2026
- Slip Op
- 2026 NY Slip Op 03327
- Citation
- 2026 NY Slip Op 03327 (N.Y. App. Div. 2d Dep’t 2026)
Background
Dylan Mulvihill was convicted, upon his plea of guilty, of possessing a sexual performance by a child. Following a hearing pursuant to the Sex Offender Registration Act (SORA) (Correction Law article 6-C), the County Court, Suffolk County assessed him a total of 80 points on the risk assessment instrument, denied his application for a downward departure from the presumptive risk level, and designated him a level two sex offender. Mulvihill appealed, challenging the assessment of points under risk factor 11 (history of drug abuse) and the denial of his application for a downward departure.
Holding
The Appellate Division, Second Department affirmed the order designating Mulvihill a level two sex offender. On the risk factor 11 challenge, the court found that the People established by clear and convincing evidence that the defendant had a history of drug abuse. The evidence included the defendant’s own admissions that he began smoking marijuana at age 13, smoked daily for several years, and was smoking frequently until the time of his arrest. Additionally, the People submitted evidence of other drug abuse and prior convictions for driving while impaired by drugs. This evidence was sufficient to support the assessment of points under risk factor 11.
On the downward departure application, the court acknowledged that courts have recognized that the assessment of points under risk factors 3 and 7 “might result in an overassessment of the risk posed to the community by an offender whose crimes were the possession of images depicting child sexual abuse.” However, a downward departure was not warranted here because the defendant was not assessed points under risk factor 7, and the court considered the number and nature of the images and video files possessed. The defendant’s claim of family support failed to demonstrate how it established a lower likelihood of reoffense or danger to the community.
Takeaways
This decision provides guidance on two SORA issues that frequently arise in cases involving possession of child sexual abuse material. First, risk factor 11 (drug abuse) can be assessed based on a defendant’s own admissions about substance use history, even if the drug use is not directly connected to the sexual offense. The “clear and convincing evidence” standard is satisfied by admissions of prolonged, frequent drug use combined with drug-related criminal history.
Second, while courts recognize that SORA risk assessment instruments may overassess risk for offenders whose crimes involve possession of images rather than direct contact offenses, this recognition does not automatically warrant a downward departure. The court considers the totality of circumstances, including the volume and nature of the material possessed, and whether the defendant has demonstrated specific mitigating factors that indicate a lower risk of reoffense.
Why It Matters
For defense attorneys representing clients in SORA proceedings, this case illustrates both the opportunities and limitations of seeking downward departures in image-possession cases. While the overassessment argument has been recognized by the courts, it must be supported by specific mitigating evidence and weighed against aggravating factors like the volume of material and the defendant’s substance abuse history. General claims of family support, without more, are insufficient to warrant a departure from the presumptive risk level.