PEOPLE v. WALLACE (2024)

Order, Supreme Court, New York County (Robert Mandelbaum, J.), entered on or about June 1, 2020, which, after a hearing, adjudicated defendant a risk level three sex offender pursuant to the Sex Offender Registration Act (Correction Law Art 6–C), unanimously reversed, on the law, without costs, and the matter remitted for further proceedings in accordance herewith.

The court properly assessed 20 points under risk factor 7 for defendant's sexual misconduct that arose in the context of his professional relationship with the victims (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary, at 12).  Defendant, a personal trainer, “exploit[ed] a professional relationship in order to victimize those who repose trust in them” (see People v. Briggs, 86 A.D.3d 903, 904, 928 N.Y.S.2d 108 [3d Dept. 2011];  Guidelines at 12).  Although his job did not require a license or specific training, professional relationships under Factor 7 are not “limited to those involving learned or licensed professions” (People v. Suazo–Lopez, 203 A.D.3d 615, 616, 162 N.Y.S.3d 728 [1st Dept. 2022], lv denied 38 N.Y.3d 912, 2022 WL 2838382 [2022]).

However, the court should not have assessed 10 points under risk factor 12 for failure to accept responsibility.  Defendant's denials of guilt were made at the time his appeal from his underlying conviction was pending.  “Requiring defendant to accept responsibility could potentially result in his admissions being used against him in any retrial, violating his Fifth Amendment right against self-incrimination” (People v. Williams, 223 A.D.3d 628, 629, 204 N.Y.S.3d 77 [1st Dept. 2024];  see generally People v. Krull, 208 A.D.3d 163, 172 N.Y.S.3d 439 [1st Dept. 2022], appeal dismissed 39 N.Y.3d 1093, 186 N.Y.S.3d 603, 207 N.E.3d 569 [2023]).  Accordingly, defendant should have been assessed 105 points, rendering him a presumptive risk level two offender.  We remit the matter to the SORA court for a determination of whether an upward departure is warranted (see People v. Weber, 40 N.Y.3d 206, 196 N.Y.S.3d 352, 218 N.E.3d 688 [2023];  People v. Reynoso, 224 A.D.3d 416, 417, 204 N.Y.S.3d 91 [1st Dept. 2024]).

We have considered defendant's remaining contentions and find them unavailing.