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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Rasheem SALLEY, Defendant-Appellant.

Decided: November 17, 2009

GONZALEZ, P.J., SAXE, McGUIRE, ACOSTA, ROMAN, JJ. Steven Banks, The Legal Aid Society, New York (Michael C. Taglieri of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (David P. Stromes of counsel), for respondent.

Order, Supreme Court, New York County (Maxwell Wiley, J.), entered on or about April 26, 2007, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6-C), unanimously affirmed, without costs.   Judgment of resentence for the underlying conviction, same court (Daniel P. FitzGerald, J.), rendered on or about July 2, 2008, resentencing defendant to a term of 3 years with 3 years' postrelease supervision, unanimously affirmed.

The People met their burden of establishing, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level three sex offender adjudication.   The court properly assessed 20 points for sexual misconduct while confined.   Although the sexual activity was allegedly consensual and noncriminal, it warranted this assessment under the Risk Assessment Guidelines because it violated prison disciplinary rules.   Furthermore, defendant's inability to refrain from forbidden sexual conduct on the occasion at issue was relevant to his potential for sexual recidivism.   The court also properly assessed 15 points for refusing sex offender treatment, and defendant's arguments to the contrary are without merit.