In People v. Millan, 295 A.D.2d 267, 743 N.Y.S.2d 872 (1st Dept. 2002), the lower court ruled that a defendant who was convicted in Federal Court of attempting to "knowingly receive or distribute any visual depiction . . . involving the use of a minor engaging is sexually explicit conduct" (18 U.S.C. 2252 a 2), was required to register as a sex offender because that federal statute contained all of the essential elements of Penal Law 263.16, Possessing a Sexual Performance by a Child, a Class E felony. However, on appeal, the First Department reversed and vacated the lower court's finding that the defendant was a risk level one sex offender because he was convicted in Federal Court of attempting to commit the Federal crime, the equivalent of which would be Penal Law 110/263.16, Attempted Possessing a Sexual Performance by a Child, a Class A misdemeanor. Therefore, the First Department appeared to allow the lower court to rule on whether a defendant is, in fact, required to register as a sex offender in the first place.