                           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
                              -4-                  518968

     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.
