Statements by defendant and the victim to the police indicate only that the victim is the foster child of defendant and his wife and that the victim began living in their foster home approximately three months before defendant initiated a course of sexual conduct against her. Prior to the current offense, defendant had no criminal record, and there is no evidence that he sexually victimized a child in the past ( cf. People v Marinconz, 178 Misc 2d 30, 37). In addition, there is no evidence that would support an inference that defendant became a foster parent in order to gain access to children for the purpose of sexually abusing them ( cf. People v Carlton, 307 AD2d 763, 764; Marinconz, 178 Misc 2d at 37), or that he established his relationship with the victim "for the primary purpose of victimization" (Guidelines at 12; see People v Terdeman, 175 Misc 2d 379, 384; cf. People v Mollenkopf, 54 AD3d 1136, 1137; People v Grosfeld, 35 AD3d 692, 693).
Although it is laudable that the defendant has commenced participation in sex offender treatment, the disturbing implication of this account reflects the defendant's attempt to minimize his responsibility for sexually assaulting the victim. It is now well-settled that such statements of a defendant minimizing his responsibility for the commission of an offense to which a plea of guilty was entered do not reflect a "genuine acceptance of responsibility" pursuant to the Risk Assessment Guidelines developed by the Board ( see People v Mitchell, 300 AD2d 377, lv denied 99 NY2d 510; People v Chilson, 286 AD2d 828; People v Marinconz, 178 Misc 2d 30, 35). Based upon the foregoing, the court concludes that the defendant's minimization of his responsibility for the commission of the underlying offense evinces his failure to express a genuine acceptance of responsibility and merits the imposition of the 10 points available under RAI risk factor 12 toward the defendant's total risk factor score.
The court properly assessed 10 points for defendant's failure to accept responsibility for his sex offense. The circumstances of defendant's plea and sentencing, viewed as a whole, do not demonstrate a genuine acceptance of responsibility ( see People v Marinconz, 178 Misc 2d 30, 34-35 [Sup Ct, Bronx County 1998]). The record also supports the court's conclusion that a discretionary upward departure would have been appropriate in any event.
Contrary to defendant's contention, clear and convincing evidence supports the court's conclusions that the presumptive override applies and that an upward departure to level three is warranted ( see People v Seils, 28 AD3d 1158, lv denied 7 NY3d 709; see generally Brown, 302 AD2d at 920). The People established that defendant has a "mental abnormality" and the failure of defendant to take prescribed medication, coupled with his tendency to self-medicate with drugs and alcohol, decreases his ability to control his impulsive sexual behavior ( see People v Marinconz, 178 Misc 2d 30, 38; cf.People v Perkins, 35 AD3d 1167, 1168; People v Zehner, 24 AD3d 826, 827), causing defendant to pose a serious risk to public safety and justifying his classification as a level three risk ( see Seils, 28 AD3d 1158).
County Court, "however, is not bound by the recommendation of the Board and, in the exercise of its discretion, may depart from that recommendation and determine the sex offender's risk level based upon the facts and circumstances that appear in the record" ( Matter of New York State Bd. of Examiners of Sex Offenders v. Ransom, 249 AD2d 891, 891-892). The record supports the court's determination that an upward departure from the presumptive risk level classification was warranted based upon aggravating factors not adequately taken into account by the RAI ( see People v. Bottisti, 285 AD2d 841, 842; People v. Marinconz, 178 Misc 2d 30, 39). The facts contained in the case summary, which were not disputed by defendant, constitute clear and convincing evidence in support of his classification as a level two offender ( see People v. Dorato, 291 AD2d 580, 581; People v. Scott, 288 AD2d 763, 765).
The point total on the risk assessment instrument (RAI) prepared by the Board of Examiners of Sex Offenders (Board) presumptively classified defendant as a level one offender, but the Board recommended an upward departure to level three based upon factors not adequately taken into account by the RAI ( see Matter of O'Brien v. State of New York Div. of Probation Correctional Servs., 263 A.D.2d 804, 805-806, lv denied 94 N.Y.2d 758). County Court, after considering the recommendation of the Board and materials submitted by both parties ( see ยง 168-n [3]), agreed with the Board that departure from the presumptive risk level classification of the RAI was warranted, and concluded that defendant was properly designated a level three offender because "the risk of repeat offense is high and there exists a threat to the public safety" (ยง 168- l [c]; see O'Brien, 263 A.D.2d at 806; People v. Marinconz, 178 Misc.2d 30, 33-34; People v. Salaam, 174 Misc.2d 726, 736). Upon our review of the record, we conclude that the court's determination of defendant's risk level is based on clear and convincing evidence ( see ยง 168-n [3]; People v. Brown, 302 A.D.2d 919, 920; People v. Scott, 288 A.D.2d 763, 765).
This statement contradicts the defendant's plea allocution in which he expressly acknowledged his guilt, and indicated that although he was intoxicated at the time, he knew what he was doing. These contradictory statements, considered together, do not reflect a "genuine acceptance of responsibility" as required by the Risk Assessment Guidelines developed by the Board (see People v. Marinconz, 178 Misc.2d 30, 35 [no genuine acceptance of responsibility where offender admits guilt but also denies memory of his criminal conduct]; People v. Chilson, 286 A.D.2d 828 [although plea of guilty might be initial step toward acceptance of responsibility, defendant's denial of guilt during presentence investigation reflects lack of acceptance of responsibility]).
In that regard, we note that the risk level assessment must be supported by clear and convincing evidence in the record (see, Correction Law ยง 168-n; see also, People v. Marinconz, 178 Misc.2d 30, 33). Petitioner scored a total of 100 points on the assessment instrument presumptively placing him within level two (moderate risk).
sponsibility pursuant to RAI Risk Factor # 12, the Guidelines provide that the SORA court "should examine the offender's most recent credible statements and should seek evidence of genuine acceptance of responsibility" (see "Sex Offender Registration Act": Risk Assessment Guidelines and Commentary, at 18 [2006]. Therefore, with respect to the defendant's statements referenced by the People in Exhibit # 3, this Court finds that the defendant's consistent failure throughout his PSR interview to acknowledge a scintilla of responsibility for causing the death of the victim, and his deflection of blame for his conviction of the underlying crime upon the failure of the trial judge to properly consider the evidence adduced during his trial, constitutes a refusal to accept responsibility for his criminal conduct (see People v. Mitchell , 300 A.D.2d 377, 751 N.Y.S.2d 530, lv. denied 99 N.Y.2d 510, 760 N.Y.S.2d 101, 790 N.E.2d 275 ; see also People v. Chilson , 286 A.D.2d 828, 731 N.Y.S.2d 88 ; People v. Marinconz , 178 Misc. 2d 30, 35, 679 N.Y.S.2d 244 ). Accordingly, as this Court concludes that the People have satisfied their burden to prove by clear and convincing evidence that the defendant has failed to express a genuine acceptance of responsibility pursuant to RAI Risk Factor # 12 (see People v. Smith , 78 A.D.3d 917, 911 N.Y.S.2d 451 ; People v. Peana , 68 A.D.3d 737, 888 N.Y.S.2d 915 ; People v. White , 39 A.D.3d 979, 833 N.Y.S.2d 726 ; see People v. Dubuque , 35 A.D.3d 1011, 824 N.Y.S.2d 823 ), the People's application seeking allocation of a total of ten (10) points under RAI Risk Factor # 12 toward the defendant's Total Risk Factor Score is granted.
The defendant's denials of memory of his conduct, blaming his intoxication, his statements that he was surprised by the allegations that he abused his children and never thought he was capable of hurting them, and his expression of embarrassment by the charges, constitute clear and convincing evidence that the defendant has not accepted responsibility for his actions. See, e.g., People v. Marinconz, 178 Misc.2d 30, 35 (Sup.Ct., Bronx Co.1998). The Court accordingly finds that the 10 points at issue were properly assessed against the defendant on risk factor number 12.