Calendar Date: April 23, 2018Before: McCarthy, J.P., Egan Jr., Aarons, Rumsey andPritzker, JJ.__________Jay L. Wilbur, Public Defender, Binghamton (Andrew Newmarkof counsel), for appellant.Stephen K. Cornwell Jr., District Attorney, Binghamton(Stephen D. Ferri of counsel), for respondent.__________Rumsey, J.Appeal from an order of the County Court of Broome County(Dooley, J.), entered June 10, 2016, which classified defendantas a risk level two sex offender pursuant to the Sex OffenderRegistration Act.In 2010, defendant pleaded guilty in federal court to thecrime of receipt of child pornography (see 18 USC § 2252A [a][2]) and was sentenced to a prison term of 84 months to befollowed by a lifetime of supervised release. Prior to hisrelease, the Board of Examiners of Sex Offenders prepared a riskassessment instrument (hereinafter RAI) under the Sex OffenderRegistration Act (see Correction Law art 6-C) that assigned 30points to risk factor 5 (age of victim), presumptively placingdefendant in the risk level one classification.1 The People alsoassigned 30 points to risk factor 5 in the RAI that theysubmitted, as well as additional points to other risk factors,presumptively placing defendant in the risk level twoclassification. Following a hearing, County Court adopted thePeople’s RAI and classified defendant as a risk level two sexoffender. Defendant now appeals.Defendant’s sole challenge is to the 30 points that wereassigned to risk factor 5, the absence of which would reduce hisscore and presumptively place him in the risk level oneclassification. Specifically, defendant contends that no pointsshould be assigned to this risk factor because there was no proofpresented of the ages of the individuals who were victims of thechild pornography that provided the basis for his federalconviction. However, the case summary and excerpts from thefederal presentence report that were considered by County Courtindicate that the search of defendant’s residence revealed “atleast 20 videos of minor females engaged in sexually explicitconduct” and that “[m]ost of the videos . . . depict girlsbetween the ages of 8 and 16.” Contrary to defendant’s claim,this constitutes reliable hearsay supporting the assignment of 30points to risk factor 5 (see People v Parisi, 147 AD3d 1162, 1164[2017]; People v Wheeler, 144 AD3d 1341, 1341 [2016]; People vBurke, 139 AD3d 1268, 1270 [2016], lv denied 28 NY3d 909 [2016]).Therefore, inasmuch as clear and convincing evidence supports therisk level two classification, we find no reason to disturb it.McCarthy, J.P., Egan Jr., Aarons and Pritzker, JJ., concur.
