Opinion
10-01-2015
The PEOPLE of the State of New York, Respondent, v. Anthony HATCHER, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Angie Louie of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Angie Louie of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), for respondent.
Opinion Order, Supreme Court, New York County (Ronald A. Zweibel, J.), entered on or about December 16, 2011, which adjudicated defendant a level three predicate sex offender pursuant to the Sex Offender Registration Act, unanimously affirmed, without costs.
The court properly assessed 10 points under the risk factor for acceptance of responsibility, because defendant's contradictory statements, admitting and denying his guilt, demonstrated a lack of genuine acceptance (see 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] ; see also People v. Mosley, 106 A.D.3d 1067, 965 N.Y.S.2d 632 [2d Dept.2013], lv. denied 22 N.Y.3d 854, 2013 WL 5716151 [2013] ).
Regardless of whether the court properly assessed points under the acceptance of responsibility factor, the record supports the court' s alternative finding that a discretionary upward departure was warranted. Even without the points disputed on appeal, defendant's point score is nearly enough for a level three adjudication. The risk assessment instrument did not adequately account for the significant risk of recidivism indicated by defendant's serious criminal history (see e.g. People v. Faulkner, 122 A.D.3d 539, 997 N.Y.S.2d 410 [1st Dept.2014], lv. denied 24 N.Y.3d 915, 2015 WL 649397 [2015] ).
TOM, J.P., ACOSTA, MOSKOWITZ, RICHTER, JJ., concur.