Opinion
02-29-2024
The PEOPLE of the State of New York, Respondent, v. Joseph JENKINS, Defendant-Appellant.
Twyla Carter, The Legal Aid Society, New York (Rebecca D. Martin of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Charles F. Hickerson IV of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Rebecca D. Martin of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Charles F. Hickerson IV of counsel), for respondent.
Manzanet–Daniels, J.P., Moulton, Scarpulla, Mendez, O’Neill Levy, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about February 15, 2019, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
[1] The court properly, assessed 10 points under risk factor 1 for forcible compulsion, based on the clear and convincing evidence that defendant bent the four-year-old victim over a chair and held her head down as he subjected her to sexual contact (see People v. Cobb, 188 A.D.2d 308, 309, 591 N.Y.S.2d 153 [1st Dept. 1992], lv denied 81 N.Y.2d 969, 598 N.Y.S.2d 770, 615 N.E.2d 227 [1993]; see also People v. Martinez, 125 A.D.3d 735, 736–737, 3 N.Y.S.3d 408 [2d Dept. 2015], lv denied 25 N.Y.3d 906, 10 N.Y.S.3d 526, 32 N.E.3d 963 [2015]).
[2] The assessment of 15 points under risk factor 12 for failure to accept responsibility was also warranted. Despite his initial admissions, defendant denied guilt during his intake interview with DOCCS and refused to participate in sex offender treatment during his incarceration. These conflicting positions demonstrated a lack of genuine acceptance of responsibility (see People v. Solomon, 202 A.D.3d 88, 94, 160 N.Y.S.3d 30 [1st Dept. 2021], lv denied 38 N.Y.3d 906, 2022 WL 1261737 [2022]; People v. Hatcher; 132 A.D.3d 407, 16 N.Y.S.3d 735 [1st Dept. 2015], lv denied 26 N.Y.3d 915, 2016 WL 42974 [2016]).
[3] The court providently exercised its discretion in declining to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]). Defendant's purported instances of acceptance of responsibility were adequately taken into account by the risk assessment instrument (see People v. Mills, 220 A D.3d 548, 548–549, 199 N.Y.S.3d 22 [1st Dept. 2023]), notwithstanding the court’s ultimate finding of lack of genuine acceptance. Defendant’s participation in alcohol and substance abuse treatment, the lack of violent crimes or sex offenses in his criminal history, and the absence of felonies committed by him in the 15 years before the underlying offense were also adequately accounted for by the risk assessment instrument (see People v. Boubacar; 222 A.D.3d 409, 202 N.Y.S.3d 10 [1st Dept. 2023]; People v. Rodriguez, 145 A.D.3d 489, 489–490, 44 N.Y.S.3d 16 [1st Dept. 2016], lv denied 28 N.Y.3d 916, 2017 WL 628943 [2017]). Defendant has not demonstrated how his age, 51 at the time of the hearing, decreased his likelihood of reoffense (see Rodriguez, 145 A.D.3d at 490, 44 N.Y.S.3d 16). In any event, the mitigating factors cited by defendant were outweighed by the seriousness of the underlying crime.