PEOPLE v. BAYRON (2021)

Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered on or about January 17, 2014, which adjudicated defendant a level three predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The court should not have assessed 15 points for lack of acceptance of responsibility based on defendant's removal from sex offender treatment due to “poor progress and participation.”  Defendant's removal was “not tantamount to a refusal to participate in treatment” (People v. Hart, 171 A.D.3d 497, 497, 95 N.Y.S.3d 804 [1st Dept. 2019], lv denied 33 N.Y.3d 912, 2019 WL 4200644 [2019]).  Moreover, defendant admitted his guilt of the underlying offense and accepted responsibility.  Nevertheless, even without any point assessment for that risk factor, defendant's prior conviction of a felony sex crime, automatically results in a presumptive risk level three, and we find no basis for a downward departure (see generally People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  The mitigating factors cited by defendant do not demonstrate that he poses anything other than a high risk of reoffense.  Defendant committed the underlying offense after three similar prior sex offenses, and after twice having been adjudicated a level three offender.