| People v Garcia |
| 2008 NY Slip Op 00064 [47 AD3d 428] |
| January 8, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v DavidGarcia, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Susan Gliner of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bernard J. Fried, J.), rendered April 30, 2001,convicting defendant of sexual abuse in the first degree, seven counts of assault in the seconddegree, and seven counts of riot in the first degree, and sentencing him to eight terms of 2½years and seven terms of 1½ to 4 years, all to run concurrently, unanimously affirmed.Order, same court (William A. Wetzel, J.), entered on or about July 1, 2004, which adjudicateddefendant a level two sex offender under the Sex Offender Registration Act (Correction Law art6-C), unanimously affirmed, without costs.
The court properly denied defendant's application pursuant to Batson v Kentucky(476 US 79 [1986]). The court properly found that the nondiscriminatory reasons provided by theprosecutor for the challenges in question were not pretextual. The court's determination turned onits evaluation of the prosecutor's credibility, and we find no reason to disturb the court'sresolution of that issue, which is entitled to great deference on appeal (see People vHernandez, 75 NY2d 350, 356 [1990], affd 500 US 352 [1991]).
The court did not err in receiving the testimony of numerous women who were victims of theriotous conduct involved in the incident, but who did not specifically implicate defendant or hisjointly tried codefendants. As defendant concedes, this testimony was generally relevant toestablish essential elements of the crime of riot in the first degree (Penal Law § 240.06).The large number of such witnesses also tended to refute defense claims that defendant or eitherof his codefendants was unaware he was participating in violent and riotous conduct as opposedto playful behavior. As such, the court properly exercised its discretion in finding that theprobative value of these witnesses outweighed any prejudicial effect (see generally People vPrimo, 96 NY2d 351, 355 [2001]).
With respect to defendant's civil appeal from his sex offender adjudication, we find that thecourt properly found him to be a level two offender. The court properly assessed defendant 15points under the risk factor for causing physical injury. While such injury related to the chargesof riot and assault, which did not charge a sexual component, defendant's convictions under thesecounts encompassed conduct that contributed to and was inextricably related to [*2]sexual assaults, and was the same conduct that resulted in thesexual assault of which defendant was convicted, even though that victim was not physicallyinjured. This conduct was proven by clear and convincing evidence, by defendant's assault andriot convictions (see Correction Law § 168-n [3]). The court also properly assessed15 points under the risk factor for nonacceptance of responsibility and refusal of treatment.Defendant's refusal of treatment was established by clear and convincing evidence through hisown admission and the case summary (see People v Warren, 42 AD3d 593, 594 [2007], lv denied9 NY3d 810 [2007]). The court was not required to accept defendant's explanation for refusingtreatment. There is no reason to remand for further fact-finding, since defendant was offered atwo-week adjournment to bring in any additional evidence he desired, but declined.Concur—Lippman, P.J., Mazzarelli, Gonzalez, Sweeny and McGuire, JJ.