Opinion
10707 Ind. 3357/09
01-07-2020
The PEOPLE of the State of New York, Respondent, v. William THOMAS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Diana J. Lewis of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Diana J. Lewis of counsel), for respondent.
Friedman, J.P., Webber, Singh, Moulton, JJ.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about August 29, 2017, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
The court correctly assessed 20 points under the risk factor for unsatisfactory conduct while confined, including sexual misconduct. There was reliable evidence that defendant engaged in lewd conduct directed at a female officer, and the record fails to support defendant's characterization of his conduct as other than sexual.
However, the court incorrectly assessed 15 points under the risk factor for acceptance of responsibility, because defendant was removed from sex offender treatment for reasons that were "not tantamount to a refusal to participate in treatment" ( People v. Ford , 25 N.Y.3d 939, 941, 6 N.Y.S.3d 541, 29 N.E.3d 888 [2015] ). Instead, the court should have assessed 10 points under the same risk factor based on defendant's general failure to accept responsibility for his sexual misconduct. Nevertheless, even without any assessment for the risk factor for acceptance of responsibility, defendant remains a level three offender, and even with such a reduced score we find no basis for a downward departure (see generally People v. Gillotti , 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument or outweighed by aggravating factors, including the seriousness of the underlying offenses.
The court providently exercised its discretion in declining to defer defendant's sex offender classification hearing indefinitely, pending civil commitment proceedings (see People v. Powell , 170 A.D.3d 413, 93 N.Y.S.3d 566 [1st Dept. 2019], lv denied 33 N.Y.3d 908, 2019 WL 2461460 [2019] ; People v. Blum , 166 A.D.3d 571, 86 N.Y.S.3d 872 [1st Dept. 2018], lv denied 32 N.Y.3d 918, 2019 WL 1348080 [2019] ). We have considered defendant's remaining arguments relating to this issue.