| People v Palladino |
| 2007 NY Slip Op 10521 [46 AD3d 864] |
| December 26, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Mauro Palladino, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Hinrichs, J.),dated July 10, 2006, which, after a hearing, designated him a level three sex offender pursuant toCorrection Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The defendant was convicted of sexual abuse in the first degree, sexual abuse in the seconddegree, and endangering the welfare of a child in connection with an ongoing course of sexualoffenses against two of his granddaughters. In anticipation of the defendant reaching the end ofhis sentence of incarceration, a risk assessment instrument was prepared by the Board ofExaminers of Sex Offenders. The defendant was assessed a total risk factor score of 110,including 15 points for not accepting responsibility for his offenses and for refusing sex offendertreatment. At the hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C,hereinafter SORA), the defendant, who has steadfastly maintained his innocence of theunderlying charges, argued, among other things, that the requirement that he admit his guilt ofthe sexual offenses for which he was convicted as a condition of participation in and completionof the sex offender treatment program violates his Fifth Amendment privilege againstself-incrimination.
Contrary to the defendant's argument, the County Court properly assessed the defendant 15points for his failure to accept responsibility for the offenses and for his refusal to complete thesex offender treatment program. A defendant may properly be assessed points under SORA forrefusing to accept responsibility for his actions (see People v Lewis, 37 AD3d 689 [2007]; People [*2]v Fortin, 29 AD3d 765 [2006]; People v Mitchell,300 AD2d 377 [2002]). The defendant's argument that the imposition of points in thesecircumstances violated his Fifth Amendment right against self-incrimination is without merit.The right is applicable where a person is confronted with a substantial and real hazard ofself-incrimination, not where the danger is trifling or imaginary (see Marchetti v UnitedStates, 390 US 39, 53 [1968]). Since the defendant has already been prosecuted for theoffenses that he claims he is being required to admit, and is therefore protected by the doublejeopardy clause from further prosecution (see US Const, Amend V; NY Const, art I,§ 6; CPL 40.20 [1]; North Carolina v Pearce, 395 US 711, 717 [1969]; People v Biggs, 1 NY3d 225, 231[2003]), he faces no such substantial or real hazard of self-incrimination. Spolzino, J.P.,Krausman, Fisher and Angiolillo, JJ., concur.