State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 14, 2015 518348 

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

JAMIE S. SMITH,

Appellant.

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Calendar Date: March 25, 2015

Before: Lahtinen, J.P., McCarthy, Garry and Lynch, JJ.

__________

Lisa A. Burgess, Indian Lake, for appellant.

Glenn MacNeill, Acting District Attorney, Malone (Jennifer

Hollis of counsel), for respondent.

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McCarthy, J.

Appeal from an order of the County Court of Franklin County

(Main Jr., J.), entered December 17, 2013, which classified

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

Offender Registration Act.

Defendant was convicted upon his plea of guilty of the

crimes of criminal sexual act in the third degree (three counts)

and endangering the welfare of a child (People v Smith, 84 AD3d

1592 [2011]). As his release from prison neared, the Board of

Examiners of Sex Offenders completed a risk assessment instrument

that presumptively classified defendant as a risk level III sex

offender in accordance with the Sex Offender Registration Act

(see Correction Law art 6-C). Following a hearing, County Court

agreed with the Board's recommendation. Defendant now appeals.
-2- 518348 

We affirm. Defendant contends that the People did not

provide clear and convincing evidence that there was a third

victim for the purposes of the Sex Offender Registration Act so

as to support the 30 points assessed pursuant to risk factor 3. 

The People may use reliable hearsay, including case summaries and

victim statements, to establish the appropriateness of a point

assessment (see People v Mingo, 12 NY3d 563, 571-574 [2009]; see

generally Correction Law § 168-n [3]). Further, a court's review

of the evidence regarding the number of victims is "not limited

to the crime[s] of conviction" (People v Tubbs, 124 AD3d 1094,

1094 [2015]; see People v Snay, 122 AD3d 1012, 1013 [2014], lv

denied 24 NY3d 916 [2015]). Here, defendant's testimony,

combined with the case summary and victim statements, constituted

clear and convincing evidence that defendant abused three

victims. As to the contested third victim (hereinafter the third

child), defendant testified that he had pleaded guilty to

endangering the welfare of a child based on facts that included

showing a pornographic film to, among others, the third child,

who was under the age of 17. According to the third child,

defendant, in front of the third child and other children, played

a pornographic film and then began to rub his genitals. Another

child present confirmed that defendant turned on the pornographic

film, sat on the floor and began to rub his genitals. Further,

the third child reported that, on an earlier occasion, he had

awoken to find his pants being unbuttoned and unzipped by

defendant. According to him, defendant thereafter began to play

a pornographic film, invited the third child to masturbate and

began to masturbate himself. Given this clear and convincing

evidence that the third child was the victim of defendant's

sexual misconduct, County Court properly assessed defendant with

30 points under risk factor 3 for three or more victims (see

People v Clavette, 96 AD3d 1178, 1179-1180 [2012], lv denied 20

NY3d 851 [2012]; People v Ramirez, 53 AD3d 990, 990 [2008], lv

denied 11 NY3d 710 [2008]; compare People v Izzo, 120 AD3d 860,

863-864 [2014, Garry, J., dissenting]). Defendant's contention

that a downward departure is warranted is unpreserved and, in any

event, without merit (see People v Rupnarain, 123 AD3d 1387, 1388

[2014]).

Lahtinen, J.P., Garry and Lynch, JJ., concur.
-3- 518348 

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court