Opinion
221 KA 15-01529.
03-24-2017
The PEOPLE of the State of New York, Respondent, v. Andrew J. ASKINS, Defendant–Appellant.
Leanne Lapp, Public Defender, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of Counsel), for Respondent.
Leanne Lapp, Public Defender, Canandaigua (Mary P. Davison of Counsel), for Defendant–Appellant.
R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DeJOSEPH, AND SCUDDER, JJ.
MEMORANDUM: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq. ). We reject defendant's contention that County Court erred in assessing 10 points in the risk assessment instrument for failing to accept responsibility. Defendant contends that he accepted responsibility by pleading guilty and by admitting his guilt in sex offender therapy. In his postarrest statements to the police, however, defendant denied any sexual contact with the victim (see People v. Teagle, 64 A.D.3d 549, 550, 884 N.Y.S.2d 80 ). In addition, in therapy, defendant substantially minimized the extent of the contact he had with the victim. Taking all of defendant's statements together, we conclude that they " do 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. Benitez, 140 A.D.3d 1140, 1140–1141, 35 N.Y.S.3d 377, lv. denied 28 N.Y.3d 908, 2016 WL 6827034 ).
Defendant further contends that the court erred in denying his request for a downward departure because the victim's lack of consent was based only on her age, and a psychologist's evaluation of defendant using the Static–99R found that he was at a low to moderate risk of reoffending. Defendant's contention is preserved for our review only in part (see People v. Iverson, 90 A.D.3d 1561, 1562, 936 N.Y.S.2d 408, lv. denied 18 N.Y.3d 811, 2012 WL 1432180 ). In any event, we reject his contention. The psychologist did not dispute that other risk assessment instruments showed that defendant was at a moderate to high risk of reoffending. In addition, while the nonforcible nature of the offense may be a mitigating factor (see People v. George, 141 A.D.3d 1177, 1178, 35 N.Y.S.3d 625 ), the court "was not required to consider the mitigating factor in a vacuum without considering any aggravating factors that would weigh against a downward departure" (People v. Sincerbeaux, 27 N.Y.3d 683, 690, 37 N.Y.S.3d 39, 57 N.E.3d 1076 ). Here, defendant violated the terms of his probation by possessing pornography, which contained themes of rape, violence, and bestiality. That aggravating factor was not adequately taken into account by the risk assessment instrument (see People v. Widom, 143 A.D.3d 688, 689, 39 N.Y.S.3d 469 ; People v. Burke, 139 A.D.3d 1268, 1269–1270, 31 N.Y.S.3d 675, lv. denied 28 N.Y.3d 909, 2016 WL 6839982 ). Therefore, considering the "totality of the circumstances," we conclude that the court providently exercised its discretion in denying defendant's request for a downward departure (People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.