| People v Wilson |
| 2014 NY Slip Op 03389 [117 AD3d 1557] |
| May 9, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vCharles R. Wilson, Appellant. |
Kathleen P. Reardon, Rochester, for defendant-appellant.
Brooks T. Baker, District Attorney, Bath (Amanda M. Chafee of Counsel), forrespondent.
Appeal from an order of the Steuben County Court (Joseph W. Latham, J.), enteredJune 7, 2013. The order determined that defendant is a level three risk pursuant to theSex Offender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Defendant appeals from an order determining that he is a level threerisk pursuant to the Sex Offender Registration Act (Correction Law § 168et seq.). Contrary to defendant's contention, County Court did not err in assessing10 points under risk factor 12 in the risk assessment instrument, for defendant's failure toaccept responsibility for his crime. Defendant entered an Alford plea, which wasnot an admission of guilt (seePeople v Hazen, 47 AD3d 1091, 1092 [2008]; People v Donhauser[appeal No. 1], 37 AD3d 1053, 1053 [2007], lv denied 8 NY3d 815 [2007]), andhe thereafter "minimized the underlying sexual offense and . . . denied thathe performed the criminal sexual act which formed the basis for the conviction" duringan interview with the Probation Department (People v Farrice, 100 AD3d 976, 977 [2012], lvdenied 20 NY3d 859 [2012]). Although defendant participated in a sex offendertreatment program while incarcerated, he denied the acts underlying his conviction at thesubsequent SORA hearing (seePeople v Johnson, 85 AD3d 889, 889 [2011], lv denied 17 NY3d 713[2011]; cf. People v Ireland,50 AD3d 1592, 1593 [2008]). We thus conclude that the People established by clearand convincing evidence that defendant "fail[ed] to genuinely accept responsibility forhis conduct 'as required by the risk assessment guidelines' " (Johnson, 85AD3d at 889).
Contrary to the further contention of defendant, the court properly assessed 20 pointsagainst him under risk factor 4, for "duration of offense conduct with victim." ThePeople met their burden of proving that "defendant engaged in two acts of sexualintercourse with the victim and that such 'acts [were] separated in time by at least 24hours' " (People vWood, 60 AD3d 1350, 1351 [2009], quoting Sex Offender Registration Act:Risk Assessment Guidelines and Commentary at 10 [2006]; see generallyCorrection Law § 168-n [3]). Defendant failed to preserve for ourreview his contention that he should not have been assessed 25 points under risk factor 2,for sexual contact with the victim (see generally People v Smith, 17 AD3d 1045, 1045 [2005],lv denied 5 NY3d 705 [2005]). In any event, that contention lacks meritinasmuch as the People presented reliable hearsay evidence, in the form of the victim'sstatement (see § 168-n [3]), that defendant had engaged in sexualintercourse with the victim (seePeople v Law, 94 AD3d 1561, 1562 [2012], lv denied 19 NY3d 809[2012]). To the extent that defendant contends that the court improperly assessed 10points pursuant to risk factor 1, for the use of violence, because forcible compulsion wasnot an element of the crime of which he was convicted, it is well settled that "the courtwas not limited to considering only the crime of which . . . defendant wasconvicted in making its determination" (People v Feeney, 58 AD3d 614, 615 [2009]; see People v Stewart, 63 AD3d1588, 1588 [2009], lv denied 13 NY3d 704 [2009]). Finally, we concludethat the presentence report and the victim's statement provided the requisite clear andconvincing evidence of forcible compulsion (see Stewart, 63 AD3d at 1588).Present—Smith, J.P., Fahey, Peradotto, Sconiers and Valentino, JJ.