| People v Ireland |
| 2008 NY Slip Op 03880 [50 AD3d 1592] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CharlesIreland, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from an order of the Oneida County Court (Michael L. Dwyer, J.), entered January25, 2006. 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 is unanimously modified on the law bydetermining that defendant is a level two risk pursuant to the Sex Offender Registration Act andas modified the order is affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level three riskpursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.)following a redetermination hearing conducted in accordance with the stipulation of settlement inDoe v Pataki (3 F Supp 2d 456 [1998]). Defendant was presumptively classified as alevel three risk based upon the total risk factor score on the risk assessment instrument preparedby the Board of Examiners of Sex Offenders (Board) for his redetermination hearing, and CountyCourt adopted the Board's recommendation.
We agree with defendant that the court's assessment of 10 points for his alleged failure toaccept responsibility for the acts underlying his conviction is not supported by clear andconvincing evidence (see Correction Law § 168-n [3]; People v Brown, 7 AD3d 831, 832[2004]). The record establishes that the court relied on statements in the presentence reportprepared in 1987, the year in which he was convicted of the sex crime in question, to establishthat defendant failed to accept responsibility for his crime. At the redetermination hearing in2005, however, defendant presented uncontroverted evidence that he had completed a sexoffender treatment program during his release on parole, and at the hearing he appeared to acceptresponsibility for the acts underlying the conviction of that sex crime. After reducing the totalrisk factor score by 10 points, defendant is properly classified as a level two risk. We thereforemodify the order accordingly. Present—Hurlbutt, J.P., Martoche, Peradotto, Pine andGorski, JJ.