| People v Fuller |
| 2011 NY Slip Op 03566 [83 AD3d 1025] |
| April 26, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Harold Fuller, Appellant. |
—[*1]
Appeal by the defendant from an order of the County Court, Westchester County (Cohen, J.),entered November 13, 2009, which, after a hearing, designated him a level three sex offender anda sexually violent offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, in determining his risk level under the Sex OffenderRegistration Act (Correction Law art 6-C; hereinafter SORA), the County Court properlyassessed points against him for inflicting physical injury upon the complainant. The Peopleproved, by clear and convincing evidence, that the defendant caused the complainant"impairment of [her] physical condition or substantial pain" (Penal Law § 10.00 [9];see People v Chiddick, 8 NY3d 445, 447 [2007]; People v Sullivan, 64 AD3d 67,73 [2009]).
Contrary to the defendant's further contention, the People proved, by clear and convincingevidence, the defendant's failure to accept responsibility for his criminal conduct, such that theCounty Court properly assessed 10 points against him under risk factor number 12. Although apsychiatrist who examined the defendant after the incident noted that the defendantacknowledged that he had done "a 'bad thing' " and was "meaningfully remorseful," during thatsame interview with the psychiatrist, the defendant claimed that the complainant had consentedto sexual relations with him. Significantly, at the hearing conducted pursuant to SORA, thedefendant continued to insist that the sexual relations had been consensual. Accordingly, theCounty Court properly determined that "the defendant's contradictory statements, 'consideredtogether, [did] not reflect a genuine acceptance of responsibility as required by the riskassessment guidelines' " (People v Vega, 79 AD3d 718, 719 [2010], quoting People vMitchell, 300 AD2d 377, 378 [2002]; see People v Teagle, 64 AD3d 549, 550[2009]).
Moreover, the County Court providently exercised its discretion in determining that themitigating factors proffered by the defendant did not warrant a downward departure (seePeople v Mendez, 79 AD3d 834, 835 [2010], lv denied 16 NY3d 707 [2011];People v Johnson, 77 AD3d 897 [2010], lv denied 16 NY3d 707 [2011];People v Maiello, 32 AD3d 463 [2006]).[*2]
The defendant's remaining contentions are without merit.
Accordingly, we find no basis to disturb the County Court's designation of the defendant as alevel three sex offender and a sexually violent offender. Skelos, J.P., Leventhal, Sgroi and Miller,JJ., concur.