Opinion
7534 Ind. 5424/11
11-01-2018
The PEOPLE of the State of New York, Respondent, v. Garth DUNNING, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Kerry Elgarten of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Luis Morales of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Kerry Elgarten of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Luis Morales of counsel), for respondent.
Renwick, J.P., Richter, Manzanet–Daniels, Gische, Tom, JJ.
Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered on or about March 3, 2015, 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.
The court properly assessed 15 points under the risk factor relating to lack of acceptance of responsibility. Although defendant pleaded guilty to the underlying sex crime, he refused to participate in sex offender treatment. The refusal itself was sufficient to demonstrate a lack of genuine acceptance of responsibility (see People v. Quinones, 157 A.D.3d 834, 66 N.Y.S.3d 643 [2d Dept. 2018], lv denied 31 N.Y.3d 903, 2018 WL 1528140 [2018] ; see also People v. Williams, 96 A.D.3d 421, 422, 945 N.Y.S.2d 305 [1st Dept. 2012], lv denied 19 N.Y.3d 813, 2012 WL 4074334 [2012] ). The court also properly assessed points under the risk factor for contact under clothing, based on clear and convincing evidence that defendant made contact with the victim by reaching under her shirt and touching her breasts, regardless of what other clothing she might have been wearing under her shirt (see People v. Sorias, 153 A.D.3d 1188, 60 N.Y.S.3d 671 [1st Dept. 2017], lv denied 30 N.Y.3d 908, 2017 WL 6459613 [2017] ).
We do not find that there was any overassessment of points, or any other basis for a downward departure (see generally People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).