People of State of New York, respondent, v. John Martonak, appellant. (2011)

Submitted-December 16, 2010

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Tomei, J.), dated December 5, 2008, which, after a hearing, designated him a level two predicate sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs or disbursements.

The defendant failed to preserve for appellate review his contention that the Supreme Court should not have assessed him 20 points under risk factor 5 because the People did not prove, by clear and convincing evidence, that the individuals depicted in the child pornography he possessed were between the ages of 11 and 16 (see People v. Teagle, 64 AD3d 549, 550).

Under the circumstances of this case, the Supreme Court acted appropriately in conducting a hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6-C) approximately 16 months before the defendant's anticipated release from federal prison (see Correction Law §§ 168-l[6], [8], 168-n[2] ).

The defendant's remaining contention is without merit.

PRUDENTI, P.J., ANGIOLILLO, FLORIO and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court