Opinion
2012-10-10
PEOPLE of State of New York, respondent, v. Wayne JAMES, also known as Carl Wayne James, appellant.
Scott M. Bishop, White Plains, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Steven Bender of counsel), for respondent.
Scott M. Bishop, White Plains, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and Steven Bender of counsel), for respondent.
Appeal by the defendant, as limited by his brief, from so much of an order of the County Court, Westchester County (Cacace, J.), entered April 30, 2010, as, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The County Court properly assessed the defendant 10 points under risk factor 10 of the Sex Offender Registration Act Guidelines ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006 ed] [hereinafter SORA Guidelines] ), based on the recency of a prior felony committed by the defendant. The People established, by clear and convincing evidence, consisting of the case summary and his presentence report, that the defendant had been released from prison to parole for a felony conviction in Maryland less than three years before he committed the sex offenses underlying the present SORA adjudication ( see Correction Law § 168–n[3]; People v. Mingo, 12 N.Y.3d 563, 571–573, 883 N.Y.S.2d 154, 910 N.E.2d 983;People v. Williams, 95 A.D.3d 1093, 943 N.Y.S.2d 783,lv. denied 19 N.Y.3d 810, 951N.Y.S.2d 720, 976 N.E.2d 249;People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446;People v. Maldonado, 79 A.D.3d 1804, 1804–1805, 913 N.Y.S.2d 118;People v. Pendelton, 50 A.D.3d 659, 855 N.Y.S.2d 191;Matter of State of New York v. J.A., 21 Misc.3d 806, 816, 868 N.Y.S.2d 841;People v. Barnes, 6 Misc.3d 469, 471, 789 N.Y.S.2d 843;cf. People v. Brown, 25 A.D.3d 924, 807 N.Y.S.2d 221).
The County Court also properly assessed the defendant 10 points under risk factor 12 of the SORA Guidelines, as the People established, by clear and convincing evidence, that he did not genuinely accept responsibility for the acts constituting the underlying sex offenses, notwithstanding his completion of a sex offender treatment program in 2010, while he was incarcerated ( see People v. Perry, 85 A.D.3d 890, 925 N.Y.S.2d 345;People v. Baker, 57 A.D.3d 1472, 1473, 871 N.Y.S.2d 537;People v. Fortin, 29 A.D.3d 765, 766, 814 N.Y.S.2d 282;People v. Mitchell, 300 A.D.2d 377, 378, 751 N.Y.S.2d 530;People v. Barnes, 6 Misc.3d at 477, 789 N.Y.S.2d 843;see also People v. Heichel, 20 A.D.3d 934, 935, 798 N.Y.S.2d 633;People v. Ramos, 25 Misc.3d 533, 541, 889 N.Y.S.2d 402).