Opinion
04-28-2017
The PEOPLE of the State of New York, Respondent, v. Benancio VASQUEZ, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ). We reject defendant's contention that County Court erred in assessing 10 points against him for failure to accept responsibility. Although defendant pleaded guilty to the crime of course of sexual conduct against a child in the second degree and completed a sex offender treatment program, he made statements denying his guilt to a probation officer preparing the presentence report, and his statement "I accept responsibility" was suspect given its timing at the SORA hearing (see generally People v. Tilley, 305 A.D.2d 1041, 1041–1042, 758 N.Y.S.2d 891, lv. denied 100 N.Y.2d 588, 764 N.Y.S.2d 399, 796 N.E.2d 491 ). "[T]he court properly concluded that defendant's statement[s] did not reflect a genuine acceptance of responsibility as required by the risk assessment guidelines developed by the Board [of Examiners of Sex Offenders]" (People v. Jamison, 137 A.D.3d 1742, 1743, 27 N.Y.S.3d 417, lv. denied 27 N.Y.3d 910, 2016 WL 3524427 [internal quotation marks omitted]; see People v. Hiram, 142 A.D.3d 1304, 1305, 37 N.Y.S.3d 807, lv. denied 28 N.Y.3d 911, 2016 WL 7397619 ; People v. Noriega, 26 A.D.3d 767, 767, 808 N.Y.S.2d 529, lv. denied 6 N.Y.3d 713, 816 N.Y.S.2d 748, 849 N.E.2d 971 ).
We reject defendant's further contentions that the court erred in assessing 20 points against him under risk factor 3, for having two victims, and 30 points against him under risk factor 5, for the victims being under 10 years of age. "[I]t is well settled that, in determining the number [and age] of victims for SORA purposes, the hearing court is not limited to the crime of which defendant was convicted" (People v. Robertson, 101 A.D.3d 1671, 1671, 956 N.Y.S.2d 378 ). Here, the court properly considered "reliable hearsay evidence" of the case summary and presentence report, which indicated both that defendant admitted sexual contact with his two daughters, and that the victims stated that the abuse occurred when they were between the ages of 4 and 13 (People v. Sincerbeaux, 27 N.Y.3d 683, 688, 37 N.Y.S.3d 39, 57 N.E.3d 1076 ; see People v. Mingo, 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.