PEOPLE v. RESTO (2023)

Order, Supreme Court, New York County (Ronald A. Zweibel, J.), entered on or about May 17, 2013, 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's assessment of 10 points under risk factor 12 for not having accepted responsibility was supported by clear and convincing evidence, consisting of defendant's statements to probation officials in connection with the preparation of his presentence report, wherein defendant denied his misconduct and declared that he pleaded guilty as a matter of expediency (see People v. Solomon, 202 A.D.3d 88, 96–97, 160 N.Y.S.3d 30 [1st Dept. 2021], lv denied 38 N.Y.3d 906, 2022 WL 1261737 [2022];  People v. Ferrer, 69 A.D.3d 513, 515, 894 N.Y.S.2d 387 [1st Dept. 2010], lv denied 14 N.Y.3d 709, 2010 WL 1755095 [2010]).  Defendant's performance in a sex offender treatment program does not undercut this evidence (see Solomon, 202 A.D.3d at 97, 160 N.Y.S.3d 30).

Defendant's contentions relating to the assessment of points under risk factor 7, offending against a stranger, and risk factor 13, unsatisfactory conduct while confined, are unpreserved and, in any event, without merit.  The evidence demonstrated that the victim and defendant were on simple and generic speaking terms and the victim explained that she did not know defendant.  The victim's reference to defendant as a “friend” to medical professionals did not undermine her testimony about the nature of their relationship and the extent of their contact (see People v. Postelli, 136 A.D.3d 514, 514, 24 N.Y.S.3d 645 [1st Dept. 2016], lv denied 27 N.Y.3d 907, 2016 WL 3151481 [2016];  People v. Tejada, 51 A.D.3d 472, 472, 857 N.Y.S.2d 558 [1st Dept. 2008]).  The evidence also demonstrated that defendant received two tier II and two tier III infractions during his confinement, one of which was for possessing a weapon, and the court was not required to disregard this infraction on the ground of remoteness in time (see People v. Neal, 214 A.D.3d 421, 421, 183 N.Y.S.3d 300 [1st Dept. 2023], lv denied 39 N.Y.3d 916, 2023 WL 4003961 [2023];  People v. Holmes, 195 A.D.3d 528, 528, 145 N.Y.S.3d 794 [1st Dept. 2021], lv denied 37 N.Y.3d 912, 2021 WL 4782530 [2021]).