Opinion
751 KA 16–02148
06-15-2018
The PEOPLE of the State of New York, Respondent, v. Dwight Roger GRAVES, Jr., Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CARNI, LINDLEY, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
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 Supreme Court erred in assessing 15 points under risk factor 11, history of drug or alcohol abuse. Defendant admitted that he had a history of substance abuse, and he was referred to substance abuse rehabilitation programs during two separate periods of incarceration, as well as to an outpatient program when he was released to parole supervision (see People v. Lowery, 93 A.D.3d 1269, 1270, 940 N.Y.S.2d 745 [4th Dept. 2012], lv denied 19 N.Y.3d 807, 2012 WL 2401529 [2012] ).
Contrary to defendant's further contention, we conclude that the court properly assessed 15 points under risk factor 12, acceptance of responsibility, despite defense counsel's explanation at the hearing that defendant was expelled from treatment based upon his refusal to make admissions that he believed would negatively affect his pending appeal. The People presented clear and convincing evidence that defendant was expelled from treatment for poor participation, and the " ‘risk assessment guidelines do not contain exceptions with respect to a defendant's reasons for refusing to participate in treatment’ " ( People v. Thousand, 109 A.D.3d 1149, 1150, 971 N.Y.S.2d 604 [4th Dept. 2013], lv denied 22 N.Y.3d 857, 2013 WL 6500631 [2013] ). Rather, "[r]easons for not participating in sex offender treatment are only relevant in considering a request for a downward departure, and the defendant never made such a request" ( People v. Grigg, 112 A.D.3d 802, 803, 977 N.Y.S.2d 84 [2d Dept. 2013], lv denied 22 N.Y.3d 865, 2014 WL 1316202 [2014] ; see Thousand, 109 A.D.3d at 1150, 971 N.Y.S.2d 604 ).
We agree with defendant that the court erred in assessing 20 points under risk factor 7 on the ground that the victim and defendant were strangers. There was no direct evidence concerning the relationship between defendant and the victim (cf. People v. Cooper, 141 A.D.3d 710, 710, 36 N.Y.S.3d 195 [2d Dept. 2016], lv denied 28 N.Y.3d 908, 2016 WL 6827047 [2016] ; People v. Lewis, 45 A.D.3d 1381, 1381–1382, 845 N.Y.S.2d 585 [4th Dept. 2007], lv denied 10 N.Y.3d 703, 854 N.Y.S.2d 103, 883 N.E.2d 1010 [2008] ), and the circumstantial evidence on which the People rely does not constitute clear and convincing evidence that defendant and the victim were strangers. Nevertheless, even after subtracting those 20 points, defendant remains a level three risk (see People v. Loughlin, 145 A.D.3d 1426, 1427, 44 N.Y.S.3d 821 [4th Dept. 2016], lv denied 29 N.Y.3d 906, 2017 WL 1719017 [2017] ), and defendant did not request a downward departure from that risk level.