                           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.
________________________________


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.

                              __________


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
