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.

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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