PEOPLE v. BUCULEI (2018)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Queens County (Steven W. Paynter, J.), dated June 12, 2017, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

The People bear of the burden of establishing, by clear and convincing evidence, the facts supporting the assessment of points under the Guidelines issued by the Board of Examiners of Sex Offenders under New York's Sex Offender Registration Act (hereinafter SORA;  Correction Law § 168–n[3] ).

Here, contrary to the defendant's contention, the Supreme Court properly assessed 20 points under risk factor 7 (relationship with victim), as the hearing evidence was clear and convincing that the defendant met the child victim on the Internet and established a relationship with her for the primary purpose of victimizing her (see SORA:  Risk Assessment Guidelines and Commentary [2006;  hereinafter Guidelines] at 12;  United States v. Buculei, 262 F.3d 322 [4th Cir.] [affirming the defendant's convictions on appeal] ).  The court also properly assessed 10 points under risk factor 12 (acceptance of responsibility).  The federal probation report included statements in which the defendant denied intending to have sexual contact with the victim or to videotape her, and there was no evidence of any subsequent acceptance of responsibility (see Guidelines at 15–16).  Thus, the evidence was clear and convincing that the defendant did not accept responsibility for his conduct (see People v. Hutchinson, 132 A.D.3d 606, 607, 18 N.Y.S.3d 612;  People v. Valdez, 123 A.D.3d 785, 786, 996 N.Y.S.2d 727;  People v. Smith, 78 A.D.3d 917, 918, 911 N.Y.S.2d 451;  People v. Palladino, 46 A.D.3d 864, 865, 850 N.Y.S.2d 468).

The defendant's remaining contention is without merit.

Accordingly, the Supreme Court properly designated the defendant a level two sex offender.

RIVERA, J.P., MILLER, BRATHWAITE NELSON and IANNACCI, JJ., concur.