Opinion
519183.
10-08-2015
The PEOPLE of the State of New York, Respondent, v. Wayne D. BENSON, Appellant.
Sandra M. Colatosti, Albany, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Sandra M. Colatosti, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Before: LAHTINEN, J.P., EGAN Jr., DEVINE and CLARK, JJ.
Opinion
DEVINE, J. Appeal from an order of the County Court of Albany County (Herrick, J.), entered March 11, 2015, which classified defendant as a risk level III sex offender and a sexually violent offender pursuant to the Sex Offender Registration Act.
Following a jury trial, defendant was convicted of numerous sex crimes against two women, including rape in the first degree, sodomy in the first degree, rape in the third degree (two counts), sodomy in the third degree (three counts) and promoting prostitution in the second degree (two counts) (People v. Benson, 260 A.D.2d 864, 690 N.Y.S.2d 143 [1999], lvs. denied 93 N.Y.2d 966, 695 N.Y.S.2d 52, 716 N.E.2d 1097, 93 N.Y.2d 977, 695 N.Y.S.2d 63, 716 N.E.2d 1108 [1999] ). In anticipation of his release from prison, the Board of Examiners of Sex Offenders presumptively classified him as a risk level III sex offender, recommending a total of 140 points on the risk assessment instrument. Following a hearing, County Court assigned 170 points on the risk assessment instrument and classified defendant as a risk level III sex offender and a sexually violent offender. Defendant now appeals.
Defendant's notice of appeal was filed prematurely on May 2, 2014, prior to the March 11, 2015 entry of the order on appeal. In the interest of justice, we will exercise our discretion and treat the notice of appeal as valid (see Correction Law § 168–n [3 ]; CPLR 5520[c] ; People v. Barrier, 58 A.D.3d 1086, 1087 n., 872 N.Y.S.2d 219 [2009], lvs. denied 12 N.Y.3d 707, 879 N.Y.S.2d 54, 906 N.E.2d 1088 [2009] ).
Defendant challenges the assessment of 15 points under risk factor 11 for drug or alcohol abuse, points which are appropriately assessed where “an offender has a substance abuse history or was abusing drugs and[/]or alcohol at the time of the offense” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]; see People v. Palmer, 20 N.Y.3d 373, 377–378, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013] ). Defendant does not dispute that he was a habitual marihuana user prior to his incarceration and, contrary to his argument, the fact that he successfully completed substance abuse treatment “while incarcerated is not necessarily predictive of his behavior when no longer under such supervision” (People v. Warren, 42 A.D.3d 593, 594, 840 N.Y.S.2d 176 [2007], lv. denied 9 N.Y.3d 810, 844 N.Y.S.2d 786, 876 N.E.2d 515 [2007] ; see People v. Parker, 62 A.D.3d 1195, 1196, 883 N.Y.S.2d 315 [2009], lv. denied 13 N.Y.3d 704, 2009 WL 2779377 [2009] ).
Nor are we persuaded that County Court erred in imposing 10 points under risk factor 12 for defendant's failure to accept responsibility for his conduct. In his probation interview, defendant asserted that the “ charges were false” and the victims “had lied” and, at the hearing, while defendant initially stated that he had accepted responsibility, he thereafter challenged the trial evidence and argued that “there [are] always two sides to a story.” Under these circumstances, notwithstanding defendant's satisfactory completion of a sex offender program while in prison, the record supports the court's “finding that defendant failed to genuinely accept responsibility for his actions” (People v. Lerch, 66 A.D.3d 1088, 1088, 885 N.Y.S.2d 919 [2009], lv. denied 13 N.Y.3d 715, 2010 WL 92429 [2010] ; see People v. Tubbs, 124 A.D.3d 1094, 1095, 1 N.Y.S.3d 561 [2015] ; People v. Dubuque, 35 A.D.3d 1011, 1011, 824 N.Y.S.2d 823 [2006] ).
Defendant's challenge to the assessment of points under risk factor 3 (number of victims) and risk factor 7 (relationship with the victim) were not raised at the hearing, even when County Court indicated its intent to assign points under those categories. Thus, these claims are not preserved for our review (see People v. Gillotti, 23 N.Y.3d 841, 861 n. 5, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; People v. Windham, 10 N.Y.3d 801, 802, 856 N.Y.S.2d 557, 886 N.E.2d 179 [2008] ; People v. Gallagher, 129 A.D.3d 1252, 1254, 11 N.Y.S.3d 712 [2015] ) and, even were we to credit the challenges to the assessment of 40 points for these risk factors, defendant would remain a presumptive risk level III sex offender.
ORDERED that the order is affirmed, without costs.
LAHTINEN, J.P., EGAN JR. and CLARK, JJ., concur.