| People v Hurlburt-Anderson |
| 2007 NY Slip Op 10321 [46 AD3d 1437] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BrendaHurlburt-Anderson, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from an order of the Ontario County Court (Craig J. Doran, J.), entered December 30,2004. The order determined that defendant is a level three risk pursuant to the Sex OffenderRegistration Act.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: On appeal from an order determining that she is a level three risk pursuant tothe Sex Offender Registration Act (Correction Law § 168 et seq.), defendantcontends that County Court's determination of her risk level is not supported by the requisiteclear and convincing evidence (see § 168-n [3]). We reject that contention. ThePeople presented clear and convincing evidence supporting the court's assessment of 15 pointsfor risk factor 12, based on the failure of defendant to accept responsibility for her criminalactions, i.e., placing a portion of the blame for her criminal actions on the victims, and herexpulsion from her mandatory sex offender treatment program (see People v Dubuque, 35 AD3d1011 [2006]). Contrary to defendant's further contention, the court's assessment of 10 pointsfor risk factor 13 was not duplicative of the points assessed for risk factor 12 inasmuch as therecord establishes that defendant was assessed risk factor points under risk factors 12 and 13 forseparate acts or omissions (cf. People vWilbert, 35 AD3d 1220, 1221 [2006]). In any event, even assuming, arguendo, that thecontentions of defendant on appeal are meritorious and that her total risk factor score should bereduced accordingly, we would nevertheless conclude that her presumptive classification as alevel three risk would not change (seePeople v Ferrara, 38 AD3d 1302 [2007], lv denied 8 NY3d 815 [2007]; People v Lujan, 34 AD3d 1346,1347 [2006], lv denied 8 NY3d 805 [2007]). Finally, defendant failed to present clear andconvincing evidence of special circumstances justifying a downward departure from herpresumptive risk level (see People vMcDaniel, 27 AD3d 1158, 1159 [2006], lv denied 7 NY3d 703 [2006]; see generally People v Dexter, 21AD3d 403, 404 [2005], lv denied 5 NY3d 716; see also People v Perkins, 32 AD3d 1241 [2006]).Present—Scudder, P.J., Gorski, Lunn, Fahey and Green, JJ.