| People v Peana |
| 2009 NY Slip Op 09011 [68 AD3d 737] |
| December 1, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JohnPeana, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.),dated October 27, 2008, which, after a hearing, designated him a level three sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The County Court's designation of the defendant as a level three sex offender under the SexOffender Registration Act (Correction Law art 6-C) is supported by clear and convincingevidence (see People v Garcia, 56AD3d 539 [2008]; People vPardo, 50 AD3d 992 [2008]).
Contrary to the defendant's contention, he was properly allocated points for not acceptingresponsibility for his conduct (risk factor 12). The defendant's lengthy disciplinary record whileincarcerated, which terminated his eligibility to enter a sex offender treatment program, may beconsidered evidence of a refusal of treatment (see People v Mercado, 55 AD3d 583 [2008]; People v Orengo, 40 AD3d 609,610 [2007]; People v Sutton, 19AD3d 1045 [2005]). The defendant's failure to obtain sex offender treatment whileincarcerated, coupled with the County Court's finding that the defendant has not genuinelyexpressed remorse for his actions, merited the imposition of points in this category (see People v White, 39 AD3d 979[2007]; People v Dubuque, 35AD3d 1011 [2006]).
Accordingly, the determination of the County Court to designate the defendant a level threesex offender should not be disturbed. Mastro, J.P., Balkin, Eng and Leventhal, JJ., concur.