PEOPLE v. ROSARIO (2018)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Michael J. Brennan, J.), dated July 21, 2015, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

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

In establishing an offender's appropriate risk level under the Sex Offender Registration Act (see Correction Law art 6–C;  hereinafter SORA), “[t]he People ‘bear the burden of proving the facts supporting the determinations’ by clear and convincing evidence” (People v. Pettigrew, 14 N.Y.3d 406, 408, 901 N.Y.S.2d 569, 927 N.E.2d 1053, quoting Correction Law § 168–n[3];  see People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983;  People v. Pearce, 135 A.D.3d 722, 722, 22 N.Y.S.3d 575;  SORA:  Risk Assessment Guidelines and Commentary at 5 [2006;  hereinafter Guidelines] ).  “In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders (hereinafter the Board), or any other reliable source, including reliable hearsay” (People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446;  see Correction Law § 168–n[3];  People v. Mingo, 12 N.Y.3d at 571–572, 883 N.Y.S.2d 154, 910 N.E.2d 983;  Guidelines at 5).

We agree with the Supreme Court's assessment of 15 points under risk factor 11 of the risk assessment instrument for a history of drug or alcohol abuse.  The defendant's history of drug or alcohol abuse was established by clear and convincing evidence in the form of his presentence report and the case summary completed by the Board (see People v. Hernandez, 153 A.D.3d 862, 57 N.Y.S.3d 906;  People v. Morrell, 139 A.D.3d 835, 835–836, 31 N.Y.S.3d 561;  People v. Crandall, 90 A.D.3d at 629, 934 N.Y.S.2d 446).  Moreover, it was established by clear and convincing evidence that the defendant was abusing drugs and alcohol at the time of the offense (see People v. Carpenter, 60 A.D.3d 833, 874 N.Y.S.2d 382;  People v. Robinson, 55 A.D.3d 708, 866 N.Y.S.2d 683), which, under the Guidelines, will generally justify the assessment of points in this category (see People v. Crandall, 90 A.D.3d at 629–630, 934 N.Y.S.2d 446).

Contrary to the defendant's contention, the People established, by clear and convincing evidence, that the assessment of 15 points under risk factor 12 was appropriate based on the defendant's refusal to participate in treatment.  “[A] refusal to participate in a sex offender treatment program automatically demonstrates an unwillingness to accept responsibility for the crime” (People v. DeCastro, 101 A.D.3d 693, 693, 954 N.Y.S.2d 496;  see People v. Quinones, 157 A.D.3d 834, 66 N.Y.S.3d 643;  People v. Grigg, 112 A.D.3d 802, 977 N.Y.S.2d 84).  Here, the People submitted a refusal notification form signed by the defendant, in which he stated, “I feel I don't need the program.”  Moreover, although the defendant contends that he may have refused treatment because he was afraid of another inmate, the “ ‘risk assessment guidelines do not contain exceptions with respect to a defendant's reasons for refusing to participate in treatment’ ” (People v. Grigg, 112 A.D.3d at 803, 977 N.Y.S.2d 84, quoting People v. Thousand, 109 A.D.3d 1149, 1150, 971 N.Y.S.2d 604;  see People v. Quinones, 157 A.D.3d 834, 66 N.Y.S.3d 643).

The defendant's contention that he was improperly assessed 15 points for the infliction of physical injury, rather than 10 points for the use of forcible compulsion, under risk factor 1 need not be addressed, since the defendant was presumptively a level three sex offender based upon the points assessed for his drug and alcohol abuse, refusal to participate in treatment, and other factors that he does not contest.

MASTRO, J.P., DILLON, MALTESE and LASALLE, JJ., concur.