| People v Salley |
| 2009 NY Slip Op 08465 [67 AD3d 525] |
| November 17, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Rasheem Salley, Appellant. |
—[*1]
Order, Supreme Court, New York County (Maxwell Wiley, J.), entered on or about April 26,2007, which adjudicated defendant a level three sex offender pursuant to the Sex OffenderRegistration Act (Correction Law art 6-C), unanimously affirmed, without costs. Judgment ofresentence for the underlying conviction, same court (Daniel P. FitzGerald, J.), rendered on orabout July 2, 2008, resentencing defendant to a term of three years with three years' postreleasesupervision, unanimously affirmed.
The People met their burden of establishing, by clear and convincing evidence, risk factorsbearing a sufficient total point score to support a level three sex offender adjudication. The courtproperly assessed 20 points for sexual misconduct while confined. Although the sexual activitywas allegedly consensual and noncriminal, it warranted this assessment under the Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary because it violated prisondisciplinary rules. Furthermore, defendant's inability to refrain from forbidden sexual conduct onthe occasion at issue was relevant to his potential for sexual recidivism. The court also properlyassessed 15 points for refusing sex offender treatment, and defendant's arguments to the contraryare without merit. Concur—Gonzalez, P.J., Saxe, McGuire, Acosta and Roman, JJ.