PEOPLE v. ELLIS (2022)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by determining that defendant is a level two risk pursuant to the Sex Offender Registration Act and as modified the order is affirmed without costs.

Memorandum: On appeal from an order adjudicating him to be a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.), defendant contends that County Court erred in assessing points under risk factors 3, 4 and 12, and that the court deprived him of due process when it sua sponte assessed points under risk factor 2 for having engaged in deviate sexual intercourse. We agree with defendant that the court erred in assessing points under risk factor 4, and we therefore deduct 20 points from his score on the risk assessment instrument (RAI). Doing so reduces defendant's score to 95, making him a presumptive level two risk. Neither defendant nor the People sought a departure from the presumptive risk level. We therefore modify the order by determining that defendant is a level two risk pursuant to SORA.

As a preliminary matter, we note that defendant failed to preserve his contention that the court violated his due process rights by sua sponte assessing 15 more points under risk factor 2 than requested by the People (see People v. Chrisley, 172 A.D.3d 1914, 1914-1915, 99 N.Y.S.3d 569 [4th Dept. 2019]; see generally People v. Koons, 108 A.D.3d 1212, 1212-1213, 969 N.Y.S.2d 366 [4th Dept. 2013]). We decline to review that contention in the interest of justice (see People v. Charache, 32 A.D.3d 1345, 1345, 821 N.Y.S.2d 728 [4th Dept. 2006], affd 9 N.Y.3d 829, 841 N.Y.S.2d 223, 873 N.E.2d 267 [2007]; cf. Chrisley, 172 A.D.3d at 1915, 99 N.Y.S.3d 569).

With respect to risk factor 12, we reject defendant's contention that the court erred in determining that he failed to accept responsibility for his crime. Although defendant admitted to the police that he had sexual contact with the victim and later defendant pleaded guilty to sexual abuse in the first degree, we agree with the court that defendant minimized his conduct when discussing his offense with the probation officer who prepared the presentence investigation report, thus warranting the assessment under risk factor 12 (see People v. Berdejo, 192 A.D.3d 923, 924, 140 N.Y.S.3d 733 [2d Dept. 2021], lv denied 37 N.Y.3d 912, 2021 WL 4734501 [2021]; People v. Askins, 148 A.D.3d 1598, 1599, 50 N.Y.S.3d 704 [4th Dept. 2017], lv denied 29 N.Y.3d 912, 2017 WL 2467479 [2017]; People v. Dubuque, 35 A.D.3d 1011, 1011, 824 N.Y.S.2d 823 [3d Dept. 2006]). Thus, “[t]aking all of defendant's statements together, we conclude that they ‘do not reflect a genuine acceptance of responsibility as required by the risk assessment guidelines’ ” (Askins, 148 A.D.3d at 1599, 50 N.Y.S.3d 704).

The court erred, however, in assessing 20 points under risk factor 4 for having engaged in a continuous course of sexual misconduct. Points may be assessed under risk factor 4 if, as relevant here, the People establish by clear and convincing evidence that defendant engaged in “two or more acts of sexual contact, at least one of which is an act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact, which acts are separated in time by at least 24 hours” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10 [2006]; see People v. Haresign, 149 A.D.3d 1578, 1579, 53 N.Y.S.3d 444 [4th Dept. 2017]). Here, “[a]lthough the People presented evidence that defendant engaged in acts of sexual contact with the victim on more than one occasion, they failed to establish ‘when these acts occurred relative to each other’ ” (People v. Edmonds, 133 A.D.3d 1332, 1332, 20 N.Y.S.3d 802 [4th Dept. 2015], lv denied 26 N.Y.3d 918, 2016 WL 634947 [2016]), and thus failed “to demonstrate that such instances were separated in time by at least 24 hours” (People v. Jarama, 178 A.D.3d 970, 971, 112 N.Y.S.3d 516 [2d Dept. 2019]; see People v. Farrell, 142 A.D.3d 1299, 1300, 37 N.Y.S.3d 805 [4th Dept. 2016]).

Defendant's remaining contention that the court erred in assessing points under risk factor 3 “is academic because, even without the [2]0 points at issue, defendant would still qualify as a level two risk” (People v. Robinson, 160 A.D.3d 1441, 1442, 72 N.Y.S.3d 886 [4th Dept. 2018]; see People v. Riddick, 139 A.D.3d 1121, 1122, 30 N.Y.S.3d 764 [3d Dept. 2016]).