(dissenting in part). I agree that the order of the Appellate Division in People v Gillotti should be reversed for the reasons stated in section II-C of the majority opinion. I otherwise dissent, because I think the majority opinion is flawed in its discussion of guidelines factors 3 and 7 and of the Board of Examiners’ Position Statement. Before discussing these topics, however, I will say a few words about the overall problem presented by the application of the Sex Offender Registration Act (Correction Law art 6-C) (SORA) to people who commit child pornography offenses.
Of course I agree — who does not? — that child pornography is an enormous evil, “uniquely harmful” to its victims (majority op at 855). And while I have expressed elsewhere my doubt that severe punishment of “minor and peripheral” consumers will be an effective way of combating the evil (People v Kent, 19 NY3d 290, 312-313 [2012, Smith, J., concurring]), I am not reopening that argument today. I do not suggest that the defendants before us were minor offenders, that they did not deserve criminal punishment, or that the punishments given them were too severe. Perhaps they were too light.
I
But SORA’s purpose is not to punish. It is to protect the community (People v Windham, 10 NY3d 801, 802 [2008]; Doe v Pataki, 120 F3d 1263 [2d Cir 1997], cert denied 522 US 1122 [1998]). To that end, information is made available to law enforcement authorities and to members of the public, telling them where people who have committed sex offenses may be found. In general, the higher an offender’s risk level, the more information is made available, the more widely it is disseminated, and the longer the offender’s registration will last (Correction Law §§ 168-l [6]; 168-h). An offender’s risk level designation under SORA is not an expression of outrage at the heinousness of a crime, or an attempt to make the offender suffer for what he has done. It is an attempt to gauge the likelihood that stringent reporting and notification requirements are needed to protect the public from future sex crimes.
*866A moment’s thought will show that sex offender registration is ill-suited to preventing recidivism by consumers of child pornography. The basic idea of SORA is that, knowing who and where the sex offenders are, people will take precautions to protect themselves and their children from them, and law enforcement authorities will be better able to make the community safe. But even if everyone in the world knows who and where a consumer of child pornography is, that will not stop him from downloading pictures from the Internet. I do not say that SORA registration for consumers of child pornography will never do any good at all; I can imagine cases in which it would do some good. And no one argues, or in light of the statute’s plain terms could argue, that such offenders should not have to register. But the vast majority of them should be classified at level one. The resources that go into the more intensive monitoring of level two and level three SORA registrants can be more usefully expended in keeping track of so-called “contact offenders” — for example rapists, and abductors of children.
The majority opinion does not take account of this basic point. Its premise seems to be that because child pornography is bad any negative consequences visited on those who provide a market for it must be good. I think that this approach is more likely to produce emotional satisfaction than to protect any children.
II
I turn now to the more specific flaws of the majority opinion— its handling of factors 3 and 7 and the Position Statement. I agree with the majority that factors 3 and 7, as written, require the assessment of a total of 50 points against each of these defendants — and against most, perhaps virtually all, consumers of child pornography. It is equally clear to me that these factors were not devised with child pornography cases in mind, and that their application to such cases produces anomalous, unintended consequences. Putting aside the effect of the Board’s Position Statement, I think the correct way of dealing with this problem is the one we outlined in People v Johnson (11 NY3d 416 [2008]): the points must be assessed, but courts should use their discretion to depart from the risk level indicated by a defendant’s point total, to the extent necessary to negate the effect of these two factors. The Position Statement, it seems to me, offers a simpler solution: courts should defer to the Board’s choice not to score points for these factors in child pornography cases.
*867Johnson dealt with factor 7, which requires the assessment of 20 points against a sex offender whose crime “was directed at a stranger.” The inherent absurdity of applying this factor in cases involving defendants like those before us is explained in Johnson. The victims in such cases — the children depicted — are almost always strangers to the offenders (and in the rare cases where they are not it is not good news) (see Johnson, 11 NY3d at 419). Thus the effect of factor 7 is simply to add an automatic 20 points in virtually every child pornography case.
The solution, as Johnson makes clear, is to take account of the anomaly in ruling on a defendant’s request for a downward departure — to recognize, in other words, that the defendant’s point total includes 20 points that in common sense should not be there (11 NY3d at 420-421). This should mean, in almost every case involving a consumer of child pornography, that a downward departure will be granted where the factor 7 points make a difference to the defendant’s presumptive risk level, unless some other facts, not adequately taken into account by the risk assessment instrument, happen to justify independently the risk level indicated by the defendant’s point total.
A Supreme Court Justice of much experience and impressive erudition on the subject of sex offender registration (see People v McFarland, 29 Misc 3d 1206[A], 2010 NY Slip Op 51705[U] [Sup Ct, NY County 2010, Conviser, J.]) understands Johnson essentially as I do. After quoting our observation that the application of factor 7 to child pornography cases produces “a seemingly anomalous result, one the authors of the Guidelines may not have intended or foreseen” (11 NY3d at 421), and after pointing out a reason for the anomaly — “[t]he simple possession of child pornography was not a crime . . . when the ‘stranger’ factor was written” — Justice Conviser said:
“Despite its concerns, the Court of Appeals in Johnson held that points for stranger victims had to be assessed under the RAI in the case before it because to do otherwise would be to ‘distort the text of [RAI] factor 7 to avoid an unjust result in cases like this.’ (11 NY3d at 420.) The remedy, the Court held, in cases where the RAI’s point scoring system led to an inappropriate result was for a court to depart downward to an appropriate risk level” (People v Marrero, 37 Misc 3d 429, 433 [Sup Ct, NY County 2012]).
This approach should be equally applicable to factor 3, though the anomaly that factor creates is slightly less obvious. Factor 3 *868scores points based on “Number of Victims” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]). The majority is at pains to demonstrate, and I do not dispute, that the number of children that a consumer of child pornography has exploited is relevant to the danger that he presents (majority op at 857-858). Certainly, “the number of children may often reflect the sheer quantity of child pornography possessed by an offender,” and this may indeed be “an aggravating factor in child pornography cases” (id. at 858). But the problem, which the majority completely ignores, is that the maximum number of victims that factor 3 contemplates is three — a maximum that carries a 30-point assessment, and that will surely be hit in virtually every child pornography case (except, perhaps, in the case of offenders, if there are any, who look only at computer-generated images, not pictures of real people). Far from taking account of the “sheer quantity” of pornography an offender possesses, factor 3 treats the offender who possesses three pictures the same as one who possesses 3,000. It is obvious that factor 3, like factor 7, was not devised with child pornography in mind; that factor, like factor 7, should be negated by granting a downward departure (absent some countervailing facts) whenever factor 3 points are decisive in fixing an offender’s presumptive risk level.
Another experienced Supreme Court Justice, also relying on what I think is a correct interpretation of Johnson, has remarked:
“The language of the sex offender classification rules assigns points to possessors of child pornography for the ‘number’ of victims, and the ‘stranger’ classification of victims, in a way that was intended by the authors of the guidelines to apply to physical contact, and not to defendants who possessed and shared child pornography. The resultant language will typically add 50 points to the sex offender totals of those who possess child pornography, whether or not they are as dangerous as physical offenders. As a result, many possessors of child pornography who are not serious threats to the community will presumptively be classified as level two offenders. Since this court does not think that result would be consistent with the intent of the authors of the SORA guidelines it anticipates that many SORA applications made as to such defendants should result *869in downward departures to level one” (People v Yen, 33 Misc 3d 1234[A], 2011 NY Slip Op 52240[U], *4 [Sup Ct, Kings County 2011, Dwyer, J.]).
I think that Justices Conviser and Dwyer are right in thinking that both common sense and our decision in Johnson should make downward departures the norm in most child pornography cases. But it also seems to me (as it did to Justice Conviser in Marrero) that the Board’s Position Statement opens the door to a more direct approach. I concede that the wording of the Position Statement is very unclear, in the ways pointed out by today’s majority (majority op at 859-860) and also by Justice Conviser in Marrero (37 Misc 3d at 433-435). I would be much happier if the Board had simply amended the guidelines — as it has the power to do — to make factors 3 and 7 inapplicable in cases of this kind, while perhaps devising other factors that can be meaningfully applied in child pornography cases.
But it is clear that the Board itself thinks it has in substance amended the guidelines. It has, as these cases illustrate, stopped scoring points for factors 3 and 7 where the offender is a consumer of child pornography. I agree that this contradicts the guidelines’ literal language. But where the literal language leads to a result that makes no sense, and the author of the language— which has the power to amend it — declines to read it literally, should courts insist on overruling the author and reaching the irrational result? Like Justice Conviser (Marrero, 37 Misc 3d at 435), I think the answer is no.
III
I have outlined two possible approaches — what may be called the Johnson approach and the Position Statement approach— that can minimize or avoid the perverse effects of factors 3 and 7 in child pornography cases. It remains to consider the impact of each approach on the two cases now before us.
The Johnson approach, unfortunately, can have no impact on the appeal in Fazio, because in Fazio — as in Johnson itself (see 11 NY3d at 421) — defendant made no request for a downward departure. Thus under Johnson we would have to apply the literal language of factors 3 and 7 and affirm Fazio’s level two designation. Fazio, like Johnson, would have to seek recourse in a new proceeding to modify his risk level designation (Correction Law § 168-o [2]; see Johnson, 11 NY3d at 422).
In Gillotti, on the other hand, a downward departure was sought. It should have been granted unless some countervailing *870factor not taken into account by the guidelines — the sort of thing that might otherwise justify an upward departure — calls for placing Gillotti at level two or three. There is an argument that countervailing factors do exist, and if the courts below had so found on sufficient evidence, I would not disturb their risk level designation. It seems to me, however, that both County Court and the Appellate Division, in finding that Gillotti had not shown grounds for a downward departure, failed to recognize the implication of Johnson that a downward departure may, and normally should, be employed to negate the effect of factors 3 and 7 in child pornography cases. I would thus remit Gillotti’s case not, as the majority does, to the Appellate Division, but to County Court, which should reconsider the case under the understanding of Johnson that I believe correct.
Under what I have called the Position Statement approach, both of the Appellate Division orders should be reversed, because in both cases defendants were wrongly charged with points under factors 3 and 7. In Fazio, I would simply order a level one designation — the result of Fazio’s point score under the Position Statement as I would interpret and apply it. In Gillotti, the point score under the Position Statement approach would also yield a level one designation; but the Board, while submitting such a score, recommended an upward departure to level two. I would remit to County Court to consider that recommendation, and to consider the People’s view on whether and to what extent an upward departure is warranted.
Judges Graffeo, Read, Pigott and Rivera concur with Judge Abdus-Salaam; Judge Smith dissents in part in an opinion in which Chief Judge Lippman concurs.In People v Gillotti: Order reversed, without costs, and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the opinion herein.
Judges Graffeo, Read, Pigott and Rivera concur with Judge Abdus-Salaam; Judge Smith dissents in an opinion in which Chief Judge Lippman concurs.In People v Fazio: Order affirmed, without costs.