| People v Smith |
| 2010 NY Slip Op 08548 [78 AD3d 917] |
| November 16, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v BennySmith, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy,and Adam M. Koelsch of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Firetog, J.),dated November 27, 2007, 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 defendant was convicted, upon a plea of guilty, of attempted rape in the first degree. Inevaluating the defendant for registration as a sex offender, the New York State Board ofExaminers of Sex Offenders (hereinafter the Board) assessed the defendant as a presumptivelevel three sexually violent offender based upon a total risk factor score on the risk assessmentinstrument (hereinafter RAI) of 115 points.
At a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6-C;hereinafter SORA), the defendant challenged the Board's recommended score of 10 pointsassessed under risk factor 12, "acceptance of responsibility," claiming that the record was devoidof any evidence that he did not accept responsibility for the crime, and that the People failed toprove facts supporting the imposition of points in that category by clear and convincing evidence(Correction Law § 168-n [3]; seePeople v Mingo, 12 NY3d 563 [2009]). The defendant claimed that his acceptance ofresponsibility was shown by his admission of guilt both at the time he was arrested and at theplea proceedings. In addition, the defendant admitted his guilt to probation and told them hisactions "[i]n my way . . . w[ere] a cry for help," and at the SORA hearing thedefendant informed the Supreme Court that his actions were wrong and that he was sorry.
The People argued that the Board's recommendation of 10 points for failing to acceptresponsibility was correct because the defendant's statement of remorse at the SORA hearinglacked credibility and was only made in response to the Supreme Court's statement that hisadmission of guilt was not the equivalent of a genuine acceptance of responsibility.
The Supreme Court stated that it accepted part of the People's argument and part of thedefense's argument, and decided to assign a midrange value of 5 points in the category ofacceptance of [*2]responsibility, rather than the 10 pointsrequired by the Risk Assessment Guidelines and Commentary or 0 points if it found that thePeople failed to meet their burden of proof. With 5 points deducted from the Board'srecommended score, the defendant still scored a total of 110 points. Based upon his score, theSupreme Court designated the defendant a level three sex offender.
On appeal, the defendant asserts that the imposition of any points under risk factor 12 wasnot supported by clear and convincing evidence, and that the Supreme Court incorrectly assigneda midrange value of 5 points, rather than assessing him 0 points, which would have put his totalscore into the risk level two category.
We agree with the defendant that the Guidelines do not provide for midrange scoring and thatthe Supreme Court erred in not assigning a proper point score of either 10 points or 0 points forrisk factor 12. The RAI was promulgated based upon a system of specified point allocationswithin the various risk categories. Those delineated point scores are an objective method ofdetermining a sex offender's risk level and are meant to be used by the Board and the courts."[T]he Board opted to create an objective assessment instrument that would provide a risk levelcombining risk of reoffense and danger posed by a sex offender" (Sex Offender Registration Act:Risk Assessment Guidelines and Commentary, at 3 [2006]). The appendix to the Guidelinesstates that "the Board modified the draft assessment instrument in an effort to make it asobjective as possible" (id. at 23). The commentary is clear that specified numerical valuesare to be utilized for each risk factor and "[w]here the category does not apply to the offender, heshould be scored 0 points" (id. at 3 n 5). There is no provision or discussion in theGuidelines of a range of points in each category. The Supreme Court's compromise to assess 5points rather than 10 or 0 for risk factor 12 frustrates the balance of values that the Board tookinto consideration when formulating the RAI.
Although the Supreme Court improperly assessed the defendant 5 points, our review of thehearing evidence, including the facts contained in the presentence report, the case summaryprepared by the Board, and the RAI, demonstrates that the People presented clear and convincingevidence that the defendant had not accepted responsibility for his conduct (see People v Garcia, 56 AD3d 539[2008]; People v Alvarez, 49 AD3d704 [2008]; People v Lawless,44 AD3d 738 [2007]). The defendant's failure to show acceptance of responsibility in hisprobation interview, and his late expression of remorse at the SORA hearing which appeared tobe a last minute attempt to escape the imposition of points, reflects that the defendant wasproperly assessed 10 points by the Board (see People v Peana, 68 AD3d 737 [2009]).
Therefore, the determination of the Supreme Court to designate the defendant a level threesex offender should not be disturbed (see People v Pardo, 50 AD3d 992 [2008]). Rivera, J.P., Angiolillo,Roman and Sgroi, JJ., concur.