PEOPLE v. NORIEGA (2006)

Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.).   Contrary to defendant's contention, County Court did not err in assessing 10 points in the risk assessment instrument based on defendant's failure to accept responsibility.   According to the presentence report, defendant denied that his sexual contact with the victim was forcible, asserted that the victim was “ ‘provoking’ him” by her behavior, and attributed his behavior to his having been under the influence of alcohol and marihuana.   Those statements are in direct contradiction to the statements in defendant's plea allocution, wherein defendant expressly acknowledged his guilt (see People v. Mitchell, 300 A.D.2d 377, 378, 751 N.Y.S.2d 530;  see also People v. Dort, 18 A.D.3d 23, 25-26, 792 N.Y.S.2d 236), and the “contradictory statements, considered together, do not reflect a ‘genuine acceptance of responsibility’ as required by the risk assessment guidelines developed by the Board [of Examiners of Sex Offenders]” (Mitchell, 300 A.D.2d at 378, 751 N.Y.S.2d 530).

In addition, we note that, although the total points under the risk assessment instrument reflect a score of 115 points rather than the score of 125 points calculated by the court, the error is of no moment inasmuch as the correct score of 115 points is also within the range of a level three risk.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: