Opinion
2014-05-9
The PEOPLE of the State of New York, Respondent, v. Charles R. WILSON, Defendant–Appellant.
Kathleen P. Reardon, Rochester, for Defendant–Appellant. Brooks T. Baker, District Attorney, Bath (Amanda M. Chafee of Counsel), for Respondent.
Kathleen P. Reardon, Rochester, for Defendant–Appellant. Brooks T. Baker, District Attorney, Bath (Amanda M. Chafee of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, and VALENTINO, JJ.
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.). Contrary to defendant's contention, County Court did not err in assessing 10 points under risk factor 12 in the risk assessment instrument, for defendant's failure to accept responsibility for his crime. Defendant entered an Alford plea, which was not an admission of guilt ( see People v. Hazen, 47 A.D.3d 1091, 1092, 850 N.Y.S.2d 267;People v. Donhauser [Appeal No. 1], 37 A.D.3d 1053, 1053, 829 N.Y.S.2d 772,lv. denied8 N.Y.3d 815, 839 N.Y.S.2d 454, 870 N.E.2d 695), and he thereafter “minimized the underlying sexual offense and ... denied that he performed the criminal sexual act which formed the basis for the conviction” during an interview with the Probation Department ( People v. Farrice, 100 A.D.3d 976, 977, 954 N.Y.S.2d 459,lv. denied20 N.Y.3d 859, 2013 WL 518536). Although defendant participated in a sex offender treatment program while incarcerated, he denied the acts underlying his conviction at the subsequent SORA hearing ( see People v. Johnson, 85 A.D.3d 889, 889, 925 N.Y.S.2d 350,lv. denied17 N.Y.3d 713, 933 N.Y.S.2d 653, 957 N.E.2d 1157;cf. People v. Ireland, 50 A.D.3d 1592, 1593, 857 N.Y.S.2d 849). We thus conclude that the People established by clear and convincing evidence that defendant “fail[ed] to genuinely accept responsibility for his conduct ‘as required by the risk assessment guidelines' ” ( Johnson, 85 A.D.3d at 889, 925 N.Y.S.2d 350).
Contrary to the further contention of defendant, the court properly assessed 20 points against him under risk factor 4, for “duration of offense conduct with victim.” The People met their burden of proving that “defendant engaged in two acts of sexual intercourse with the victim and that such ‘acts [were] separated in time by at least 24 hours' ” ( People v. Wood, 60 A.D.3d 1350, 1351, 875 N.Y.S.2d 686, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10; see generallyCorrection Law § 168–n [3] ). Defendant failed to preserve for our review his contention that he should not have been assessed 25 points under risk factor 2, for sexual contact with the victim ( see generally People v. Smith, 17 A.D.3d 1045, 1045, 793 N.Y.S.2d 782,lv. denied5 N.Y.3d 705, 801 N.Y.S.2d 252, 834 N.E.2d 1261). In any event, that contention lacks merit inasmuch as the People presented reliable hearsay evidence, in the form of the victim's statement ( see § 168–n [3] ), that defendant had engaged in sexual intercourse with the victim ( see People v. Law, 94 A.D.3d 1561, 1562, 943 N.Y.S.2d 814,lv. denied19 N.Y.3d 809, 2012 WL 3743354). To the extent that defendant contends that the court improperly assessed 10 points pursuant to risk factor 1, for the use of violence, because forcible compulsion was not an element of the crime of which he was convicted, it is well settled that “the court was not limited to considering only the crime of which ... defendant was convicted in making its determination” ( People v. Feeney, 58 A.D.3d 614, 615, 871 N.Y.S.2d 340;see People v. Stewart, 63 A.D.3d 1588, 1588, 879 N.Y.S.2d 759,lv. denied13 N.Y.3d 704, 2009 WL 2871124). Finally, we conclude that the presentence report and the victim's statement provided the requisite clear and convincing evidence of forcible compulsion ( see Stewart, 63 A.D.3d at 1588, 879 N.Y.S.2d 759).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.