State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 30, 2016 518968 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

WILLIAM P. GRAZIANO,

Appellant.

________________________________

Calendar Date: May 27, 2016

Before: McCarthy, J.P., Rose, Devine and Aarons, JJ.

__________

James P. Milstein, Public Defender, Albany (Christopher J.

Ritchey of counsel), for appellant.

P. David Soares, District Attorney, Albany (Brittany L.

Grome of counsel), for respondent.

__________

Rose, J.

Appeal from an order of the County Court of Albany County

(Lynch, J.), dated February 27, 2014, which classified defendant

as a risk level III sex offender pursuant to the Sex Offender

Registration Act.

Defendant pleaded guilty in 2007 to the federal crime of

possession of child pornography (see 18 USC § 2252A [a] [5] [B])

and was sentenced to 87 months in jail and 20 years of

postrelease supervision. The conviction stems from the

disclosure by an underage female relative that, among other

things, defendant had exposed her to child pornography and

masturbated in front of her. The subsequent forensic examination

of defendant's home computers revealed a total of 511 images of
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child pornography on one hard drive and, on the other hard drive

which had been wiped clean, 11 such images were discovered. 

Following defendant's release from prison, the Board of Examiners

of Sex Offenders prepared a risk assessment instrument

(hereinafter RAI) that placed him within the presumptive risk

level I category (35 points).1 The Board recommended an upward

departure to a risk level II based upon defendant's history of

viewing child pornography for five years or more, the number of

images possessed, which it found was likely "far higher" before

the hard drive was wiped clean, and his sexually-related

conviction for endangering the welfare of a child, which was not

taken into consideration in its RAI due to the timing of the

events. The People also prepared an RAI in which they advocated

for the assessment of 110 points, a presumptive risk level III

sex offender, which added 30 points under risk factor 3 for

number of victims and 20 points under risk factor 7 for stranger

relationship with victim, and increased the points under risk

factor 9 to 30 points for a prior endangering the welfare of a

child conviction. After a hearing, County Court agreed with the

People's assessment of points and classified defendant as a risk

level III sex offender, and denied defendant's request for a

downward departure. Defendant now appeals.

We affirm. Defendant argues that County Court excessively

assessed 30 points under risk factor 3 (number of victims) and 20

points under risk factor 7 (stranger relationship with victim)

given that he was convicted of possessing child pornography. We

disagree. Under established law, children depicted in

pornographic images are each separate victims for purposes of the

Sex Offedner Registration Act in general and risk factor 3 in

particular (see People v Gillotti, 23 NY3d 841, 844-845, 854-858

[2014]; People v Johnson, 11 NY3d 416, 418-420 [2008]; People v

Weihrich, 111 AD3d 1032, 1033 [2013], lv denied 23 NY3d 905

[2014]). Defendant did not dispute the proof that he possessed

pornographic images depicting at least 16 different children who

1 The Board included 30 points under risk factor 5 for age

of the victim (10 or less) and five points under risk factor 9

for prior crimes for his "prior history/no sex crimes or

felonies."
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were later identified by the National Center for Missing and

Exploited Children, and did not contest the details in the case

summary regarding the graphic images of three children between

the ages of four and six. This provided clear and convincing

evidence supporting the court's assessment of 30 points under

risk factor 3 (see Correction Law § 168-n [3]; People v Gillotti,

23 NY3d at 861-862; People v Weihrich, 111 AD3d at 1033). 

Likewise, it was undisputed that the victimized children

portrayed in the images possessed by defendant were strangers to

him, permitting the assessment of 20 points under risk factor 7

(see People v Johnson, 11 NY3d at 420-421). 

We are similarly unpersuaded by defendant's argument that

the denial of his request for a downward departure constituted an

abuse of discretion. The request was premised upon defendant's

age (50), lack of felony history and letters of recommendation

from friends and employers opining that they did not find him to

be a risk. These letters were taken into consideration by the

Board, however, and we find no basis upon which to disturb County

Court's conclusion that these submissions did not demonstrate, by

a preponderance of the evidence, the existence of mitigating

factors not adequately taken into consideration by the risk

assessment guidelines so as to warrant a downward departure (see

People v Gillotti, 23 NY3d at 861). In that regard, the case

summary contains disturbing disclosures indicating that defendant

has had a long history of deviant sexual contact with others, he

abused children as young as 10 years old and he was resistant to

treatment, supporting the Board's finding that he is "sexually

deviant" and "sexually preoccupied." Considering these facts,

the assignment of points under risk factors 3 and 7 did not

result in an overestimation of defendant's risk of reoffense and

danger to the public (see People v Gillotti, 23 NY3d at 858, 860;

People v Johnson, 11 NY3d at 421).2

2 While County Court indicated that its risk level III sex

offender designation constituted an "upward departure" in that it

departed from the Board's recommended risk level, we note that

the Board's risk level assessment is a recommendation that is not

binding on the court (see Correction Law §§ 168-l [6]; 168-n;

People v Johnson, 11 NY3d at 421). Where, as here, the court
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McCarthy, J.P., Devine and Aarons, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

rejects the Board's RAI calculation and recommendation in favor

of its own, different presumptive risk level based upon its RAI

calculation, this does not constitute an upward departure. 

Rather, it represents the court's risk level designation in

accordance with its own presumptive risk level calculation.