| People v Fazio |
| 2013 NY Slip Op 03517 [106 AD3d 1291] |
| May 16, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vGeorge F. Fazio, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), forrespondent.
Garry, J. Appeal from an order of the County Court of Albany County (Breslin, J.),entered November 10, 2011, which classified defendant as a risk level two sex offenderpursuant to the Sex Offender Registration Act.
Following an investigation in Pennsylvania, defendant was found to possessnumerous videos and still images of child pornography on his computer. He pleadedguilty in that state to two counts of sexual abuse of children, and moved to New Yorkafter his release from prison. Pursuant to the Sex Offender Registration Act (seeCorrection Law art 6-C), the Board of Examiners of Sex Offenders prepared a riskassessment instrument that placed him within the presumptive risk level one category.County Court assessed defendant 30 additional points for risk factor 3 (number ofvictims) following a hearing, presumptively rendering him a risk level two sex offender.Defendant was so classified, and he appeals.
We affirm. Children depicted in pornographic images may be found to constitutemultiple separate victims for the purposes of the Sex Offender Registration Act (see People v [*2]Poole, 90 AD3d 1550, 1550 [2011]; see also People v Johnson, 11NY3d 416, 420 [2008]).[FN*]Defendant did not dispute that three or more children were depicted in the images andvideos he possessed and, under the circumstances of this case, clear and convincingevidence supports County Court's assessment of 30 additional points under risk factor 3(see People v Carroll, 102AD3d 848, 849 [2013]; People v Poole, 90 AD3d at 1550).
Lahtinen, J.P., Stein and Spain, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: As at least one trialcourt has recently noted, the Board subsequently issued a "position statement" in June2012 proposing review of additional factors in future cases, specifically addressing thedifferences among child pornography offenders (People v Marrero, 37 Misc 3d 429, 443-444 [2012]).