Opinion
2007–05289
07-08-2020
PEOPLE of State of New York, Respondent, v. Roland BRAXTON, Appellant.
Janet E. Sabel, New York, N.Y. (Denise Fabiano of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ruth E. Ross, and Daniel Berman of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Denise Fabiano of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ruth E. Ross, and Daniel Berman of counsel), for respondent.
REINALDO E. RIVERA, J.P. JOSEPH J. MALTESE BETSY BARROS VALERIE BRATHWAITE NELSON ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Abraham Gerges, J.), dated April 25, 2007, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
The defendant was convicted, upon a plea of guilty, of attempted sodomy in the first degree. After a Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA) risk level assessment hearing, the Supreme Court designated the defendant a level three sex offender. The defendant appeals.
Contrary to the defendant's contention, the People established, by clear and convincing evidence, that the assessment of 15 points under risk factor 12 was appropriate based on the defendant's refusal to participate in a sex offender treatment program. The People submitted a refusal notification form signed by the defendant. At the SORA hearing, the defendant did not deny that he had refused treatment. Instead, he offered explanations for his refusal to participate in the program. A refusal to participate in a sex offender treatment program by itself demonstrates an unwillingness to accept responsibility for the crime (see People v. Padgett, 170 A.D.3d 1054, 94 N.Y.S.3d 443 ; People v. Quinones, 157 A.D.3d 834, 66 N.Y.S.3d 643 ; People v. DeCastro, 101 A.D.3d 693, 954 N.Y.S.2d 496 ), and the risk assessment guidelines do not contain exceptions with respect to a defendant's reasons for refusing to participate in treatment (see People v. Diaz, 169 A.D.3d 727, 92 N.Y.S.3d 151 ; People v. Rosario, 164 A.D.3d 625, 626, 81 N.Y.S.3d 566 ; People v. Quinones, 157 A.D.3d 834, 66 N.Y.S.3d 643 ; People v. Grigg, 112 A.D.3d 802, 803, 977 N.Y.S.2d 84 ; People v. DeCastro, 101 A.D.3d 693, 954 N.Y.S.2d 496 ).
We agree with the Supreme Court's assessment of 15 points under risk factor 11, based on the defendant's history of drug abuse (see People v. Padgett, 170 A.D.3d 1054, 94 N.Y.S.3d 443 ; People v. Fryer, 101 A.D.3d 835, 955 N.Y.S.2d 407 ).
Accordingly, we agree with the Supreme Court's determination designating the defendant a level three sex offender.
RIVERA, J.P., MALTESE, BARROS, BRATHWAITE NELSON and IANNACCI, JJ., concur.