| People v Mercado |
| 2008 NY Slip Op 07644 [55 AD3d 583] |
| October 7, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LuisMercado, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anthea H. Bruffee ofcounsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Mangano, J.), datedApril 12, 2005, which, after a hearing, designated him a level three sex offender pursuant to CorrectionLaw article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, the Supreme Court's determination designating him a levelthree sex offender is supported by clear and convincing evidence (see Correction Law §168-n; People v Mingo, 49 AD3d148 [2008]). The defendant's conviction of sexual abuse in the first degree pursuant to Penal Law§ 130.65 (3) established that he subjected the victim to sexual contact, and thus, as he concededat the hearing, he could properly be assessed at least five points under risk factor two of the riskassessment instrument. Even assuming that the People failed to adduce sufficient evidence to establishthat the defendant actually should have been assessed 25 points under risk factor two for havingengaged in sexual intercourse with the victim, subtracting 20 of the 25 points assigned for this risk factorwould not alter the defendant's presumptive risk level.
The defendant's conviction of sexual abuse in the first degree pursuant to Penal Law §130.65 (3), an offense which is committed when a person subjects a child under the age of 11 to sexualcontact, also established that the defendant was properly assessed 30 points for having committed anoffense against a victim who was 10 years old or less.[*2]
The defendant further contends that he was improperlyassessed 15 points under risk factor 12 because his disciplinary confinements while incarceratedprevented him from participating in sex offender treatment. However, the defendant waived this claimby declining the court's offer to adjourn the hearing so that he could obtain prison records to refuteevidence that he refused to participate in a sex offender counseling program (see People v Dexter, 21 AD3d 403[2005]). In any event, the defendant was properly assessed points under this risk factor based uponclear and convincing evidence of his failure to accept responsibility for his offense, coupled with hisrefusal to participate in treatment (see Peoplev Brister, 38 AD3d 634 [2007]; People v Matthie, 34 AD3d 987 [2006]; People v Mitchell, 300AD2d 377 [2002]).
The defendant's remaining contentions are without merit. Mastro, J.P., Lifson, Carni and Eng, JJ.,concur.