State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 9, 2017 520471
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
JOHN PARISI,
Appellant.
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Calendar Date: January 12, 2017
Before: Peters, P.J., Rose, Devine and Aarons, JJ.
__________
Terence L. Kindlon, Public Defender, Albany (Theresa M.
Suozzi of counsel), for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark
of counsel), for respondent.
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Rose, J.
Appeal from an order of the County Court of Albany County
(Lynch, J.), entered January 7, 2015, which classified defendant
as a risk level three sex offender pursuant to the Sex Offender
Registration Act.
In 2004, defendant pleaded guilty to sexual exploitation of
a minor (four counts) and aiding and abetting witness tampering
in satisfaction of an 18-count federal indictment stemming from
his production and distribution of child pornography (18 USC §§
1512, 2251 [a], [d]). The federal presentence report
(hereinafter PSR) documented that defendant had produced and
distributed pornography depicting three child victims, which he
posted on his commercial website and charged a fee for viewing;
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he also possessed over 100 images of child pornography on his
computer and a CD containing movies depicting 10 children in
sexually explicit poses. Prior to his release from federal
prison, the Board of Examiners of Sex Offenders completed a risk
assessment instrument in accordance with the Sex Offender
Registration Act (see Correction Law art 6-C) that presumptively
classified defendant as a risk level one sex offender, assessing
60 points – 30 points each for risk factor 3 (number of victims,
three or more) and risk factor 5 (age of victim, 10 or less).
The Board also recommended an upward departure to a risk level
two classification, based on defendant's commercial production
and distribution of child pornography. The People then submitted
a risk assessment instrument that scored 80 points, presumptively
classifying defendant as a risk level two sex offender, agreeing
with the Board's assessment of points, but adding 20 points for
risk factor 7 (stranger relationship with the victim). The
People further recommended an upward departure to a risk level
three sex offender. Following a hearing, County Court found that
defendant was a presumptive risk level two sex offender based
upon a score of 80 as submitted by the People and, after
determining that an upward departure was warranted, classified
him as a risk level three sex offender. Defendant now appeals.
We affirm. We are unpersuaded by defendant's contention
that the record does not contain sufficient reliable evidence
supporting the assessment of points under risk factor 7. This
risk factor requires the People to establish that the crime "was
directed at a stranger or a person with whom a relationship had
been established or promoted for the primary purpose of
victimization" (Sex Offender Registration Act: Risk Assessment
Guidelines and Commentary, at 12 [2006]; see People v Gillotti,
23 NY3d 841, 852 [2014]). The People relied upon the PSR which
established that defendant possessed over 100 images of child
erotica and pornography of children between the ages of 10 and 17
being subjected to oral, vaginal and anal sexual contact. At the
hearing, defendant did not dispute that the PSR constituted
reliable hearsay (see Correction Law § 168-n [3]; People v Mingo,
12 NY3d 563, 572-573 [2009]) or that he had a stranger
relationship with the victimized children featured in the
pornographic images and videos he possessed. Under risk factor
7, a court may assign points to a possessor of child pornography
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who was a stranger to the depicted children because defendant's
crime was "directed at [a] stranger" (Sex Offender Registration
Act: Risk Assessment Guidelines and Commentary, at 12; see People
v Gillotti, 23 NY3d at 853-854, 857; People v Johnson, 11 NY3d
416, 420-421 [2008]). Accordingly, the court properly assessed
points under this risk factor (see People v Guyette, 140 AD3d
1555, 1556 [2016]; People v Graziano, 140 AD3d 1541, 1542 [2016],
lv denied 28 NY3d 909 [2016]; People v Weihrich, 111 AD3d 1032,
1033 [2013], lv denied 23 NY3d 905 [2014]).
Defendant further contends that County Court abused its
discretion in granting the People's request for an upward
departure to a risk level three sex offender. "An upward
departure from the presumptive risk level is justified when an
aggravating factor, not adequately taken into account by the risk
assessment guidelines, is established by clear and convincing
evidence" (People v Sabin, 139 AD3d 1282, 1282 [2016] [internal
quotation marks, brackets and citations omitted], lv denied 28
NY3d 905 [2016]; see People v Gillotti, 23 NY3d at 861-862;
People v Guyette, 140 AD3d at 1556). The reliable hearsay
evidence submitted by the People, including the case summary and
PSR, established that defendant was engaged in the commercial
production and distribution of child pornography on a website he
designed, operated and profited from (see People v Mingo, 12 NY3d
at 572-573; People v Burke, 139 AD3d 1268, 1270 [2016], lv denied
28 NY3d 909 [2016]). Also, defendant had attempted to engage in
sexual activity with one of his child victims as part of his
production of child pornography. In view of this evidence, which
was clear and convincing, County Court did not abuse its
discretion in concluding that an upward departure to a risk level
three classification was warranted (see People v Burke, 139 AD3d
at 1270).
Peters, P.J., Devine and Aarons, JJ., concur.
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ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court