PEOPLE v. DONHAUSER (2007)

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.).   We reject the contention of defendant that County Court erred in assessing a total of 15 points on the risk assessment instrument for failure to accept responsibility.   Defendant entered an Alford plea (see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162) to the charge of rape in the third degree (Penal Law § 130.25[2] ).   Defendant thereafter denied that he was guilty of that charge to a counselor at the prison and refused to enter a sex offender treatment program.   An Alford plea, coupled with denial of guilt thereafter, is sufficient to establish an offender's failure to accept responsibility (see People v. Matthie, 34 A.D.3d 987, 824 N.Y.S.2d 454;  cf. People v. Gonzalez, 28 A.D.3d 1073, 1074, 814 N.Y.S.2d 834).

We also reject the further contention of defendant that the court erred in assessing 15 points for his release without supervision.   The record contains clear and convincing evidence establishing that defendant served the maximum prison sentence and was released without supervision (see People v. Stevenson, 28 A.D.3d 1248, 1249, 813 N.Y.S.2d 344, lv. denied 7 N.Y.3d 707, 821 N.Y.S.2d 813, 854 N.E.2d 1277;  People v. Swackhammer, 25 A.D.3d 892, 809 N.Y.S.2d 227).

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

MEMORANDUM: