Opinion
11-18-2016
The PEOPLE of the State of New York, Respondent, v. Terri T. HAVENS, Defendant–Appellant.
Jeannie D. Michalski, Conflict Defender, Geneseo, for Defendant–Appellant. Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
Jeannie D. Michalski, Conflict Defender, Geneseo, for Defendant–Appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ). We reject the contention of defendant that County Court erred in determining that he is a level three risk. At the outset, we note that “[d]efendant failed to request a downward departure to a level two risk, and thus he failed to preserve for our review his contention that the court erred in failing to afford him that downward departure from his presumptive level three risk” (People v. Quinones, 91 A.D.3d 1302, 1303, 937 N.Y.S.2d 780, lv. denied 19 N.Y.3d 802, 2012 WL 1538352 ). Contrary to defendant's contention, the court properly assessed 10 points against him under risk factor 12, for failure to accept responsibility for his crime (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [Guidelines], at 15–16 [2006] ). Although defendant pleaded guilty to the crime underlying the SORA determination, the case summary, defendant's preplea investigation statement, and the statements that he made during the SORA hearing did not “reflect a genuine acceptance of responsibility as required by the risk assessment guidelines developed by the Board [of Examiners of Sex Offenders]” ( People v. Noriega, 26 A.D.3d 767, 767, 808 N.Y.S.2d 529, lv. denied 6 N.Y.3d 713, 816 N.Y.S.2d 748, 849 N.E.2d 971 [internal quotation marks omitted]; see People v. Smith, 75 A.D.3d 1112, 1112, 903 N.Y.S.2d 857 ). Rather than accepting responsibility, defendant attributed his behavior to being under the influence of alcohol and marihuana, blamed the victim, and refused to show remorse (see People v. Wilson, 117 A.D.3d 1557, 1557–1558, 985 N.Y.S.2d 384, lv. denied 24 N.Y.3d 902, 2014 WL 4357550 ; People v. Urbanski, 74 A.D.3d 1882, 1883, 903 N.Y.S.2d 648, lv. denied 15 N.Y.3d 707, 2010 WL 3583295 ; People v. Kyle, 64 A.D.3d 1177, 1177, 881 N.Y.S.2d 759, lv. denied 13 N.Y.3d 709, 2009 WL 3379124 ; Noriega, 26 A.D.3d at 767, 808 N.Y.S.2d 529 ).
Contrary to defendant's further contention, the court's assessment of 10 points under risk factor 13, for conduct while confined (see Guidelines, at 16), is supported by evidence establishing that, even though the case summary described defendant's conduct while confined as “acceptable” (see People v. Belile, 108 A.D.3d 890, 891, 969 N.Y.S.2d 228, lv. denied 22 N.Y.3d 853, 2013 WL 5658049 ), his record while incarcerated included 19 tier II violations and five tier III violations (see People v. Anderson, 137 A.D.3d 988, 988, 27 N.Y.S.3d 616, lv. denied 27 N.Y.3d 909, 2016 WL 3248210 ; People v. Correnti, 126 A.D.3d 681, 681, 2 N.Y.S.3d 375 ; People v. Catchings, 56 A.D.3d 1181, 1182, 867 N.Y.S.2d 618, lv. denied 12 N.Y.3d 701, 876 N.Y.S.2d 348, 904 N.E.2d 503 ).
Even assuming, arguendo, that defendant was a presumptive level two risk based on his total risk factor score, we conclude that the court properly determined, in the alternative, that an upward departure to a level three risk was warranted because there is clear and convincing evidence of “aggravating ... circumstances ... not adequately taken into account by the guidelines” (People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; see People v. Witherspoon, 140 A.D.3d 1674, 1674–1675, 34 N.Y.S.3d 818, lv. denied 28 N.Y.3d 905, 2016 WL 6209335 [2016] ), including that defendant was diagnosed with pedophilia and had difficulty controlling his urges (see People v. Moore, 130 A.D.3d 1498, 1498, 12 N.Y.S.3d 757 ; People v. Mallaber, 59 A.D.3d 989, 990, 874 N.Y.S.2d 340, lv. denied 12 N.Y.3d 710, 2009 WL 1260185 ; People v. Seils, 28 A.D.3d 1158, 813 N.Y.S.2d 594, lv. denied 7 N.Y.3d 709, 822 N.Y.S.2d 483, 855 N.E.2d 799 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.