Opinion
04-15-2024
The PEOPLE of the State of New York, Respondent, v. Barron JONES, Defendant-Appellant.
Alvin Bragg, District Attorney (Nathan Morgante of counsel), for respondent. Legal Aid Society (Danielle A. Bernstein of counsel) for appellant.
Defendant appeals from an order of the Criminal Court of the City of New York, New York County (Heidi C. Cesare, J.), entered April 22, 2019, which, after a hearing, adjudicated him a level two sex offender under the Sex Offender Registration Act ("SORA") (Correction Law Art 6-c).
Alvin Bragg, District Attorney (Nathan Morgante of counsel), for respondent.
Legal Aid Society (Danielle A. Bernstein of counsel) for appellant.
PRESENT: Hagler, P.J., Brigantti, Perez, JJ.
Per Curiam.
Order (Heidi C. Cesare, J.), entered April 22, 2019, reversed, on the law, without costs, and the matter remitted for further proceedings in accordance herewith.
[1] The court’s point assessment for defendant’s history of substance abuse was supported by clear and convincing evidence, including defendant’s multiple prior drug convictions (see People v. Wilkens, 33 A.D.3d 399, 822 N.Y.S.2d 79 [2006], lv denied 8 N.Y.3d 801, 828 N.Y.S.2d 292, 861 N.E.2d 108 [2007]), and his treatment for substance abuse (see People v. Gonzalez, 48 A.D.3d 284, 852 N.Y.S.2d 71 [2008], lv denied. 10 N.Y.3d 711, 860 N.Y.S.2d 483, 890 N.E.2d 246 [2008]).
[2] However, the court should not have assessed 10 points under risk factor 12 for failure to accept responsibility. Defendant’s denials of guilt were made at the time his appeal from his underlying conviction was pending. Requiring defendant to accept responsibility could potentially result in his admissions being used against him in any retrial, violating his Fifth Amendment right against self-incrimina- tion (see People v. Williams, 223 A.D.3d 628, 204 N.Y.S.3d 77 [2024]; People v. Krull, 208 A.D.3d 163, 172 N.Y.S.3d 439 [2022], appeal dismissed 39 N.Y.3d 1093, 186 N.Y.S.3d 603, 207 N.E.3d 569 [2023]). Accordingly, defendant should have been assessed 70 points, rendering him a presumptive risk level one offender. Because this erroneous point assessment affected the People’s decision to not argue for an upward departure at the SORA hearing, the People are entitled to seek an upward departure on remand (see People v. Weber, 40 N.Y.3d 206, 196 N.Y.S.3d 352, 218 N.E.3d 688 [2023]; People v. Reynoso, 224 A.D.3d 416, 204 N.Y.S.3d 91, 2024 N.Y. Slip Op. 00463 [2024]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
All concur.