Opinion
8937 Ind. 6351/08
04-09-2019
The PEOPLE of the State of New York, Respondent, v. Jason HART, Defendant–Appellant.
Tina M. Luongo, The Legal Aid Society, New York (Elizabeth B. Emmons of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Victoria Muth of counsel), for respondent.
Tina M. Luongo, The Legal Aid Society, New York (Elizabeth B. Emmons of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Victoria Muth of counsel), for respondent.
Richter, J.P., Tom, Kahn, Moulton, JJ.
The court properly assessed defendant 15 points under the risk factor for drug or alcohol abuse. Defendant's admissions of his extensive history of substance abuse provided clear and convincing evidence, satisfying the standard set forth in People v. Palmer, 20 N.Y.3d 373, 378–379, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013]. The court also properly assessed 10 points under the risk factor for conduct while confined, based on defendant's lengthy record of disciplinary infractions (see People v. Chabrier, 38 A.D.3d 355, 830 N.Y.S.2d 898 [1st Dept. 2007]lv denied 9 N.Y.3d 801, 840 N.Y.S.2d 567, 872 N.E.2d 253 [2007] ).
However, defendant was improperly assessed 15 points under the risk factor for acceptance of responsibility. The case summary noted that defendant was removed from a sex offender treatment program due to poor progress and participation, which under the SORA Guidelines is "not tantamount to refusal to participate in treatment" ( People v. Ford, 25 N.Y.3d 939, 941, 6 N.Y.S.3d 541, 29 N.E.3d 888 [2014] ). Nevertheless, without those points defendant remains a level two offender, and even with the corrected point score we find no 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] ).