        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

932
KA 15-00647
PRESENT: WHALEN, P.J., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TERRI T. HAVENS, DEFENDANT-APPELLANT.


JEANNIE D. MICHALSKI, CONFLICT DEFENDER, GENESEO, FOR
DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Livingston County Court (Dennis S.
Cohen, J.), entered February 26, 2015. The order determined that
defendant is a level three risk pursuant to the Sex Offender
Registration Act.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Defendant appeals from an order determining that he
is a level three risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). We reject the contention of
defendant that County Court erred in determining that he is a level
three risk. At the outset, we note that “[d]efendant failed to
request a downward departure to a level two risk, and thus he failed
to preserve for our review his contention that the court erred in
failing to afford him that downward departure from his presumptive
level three risk” (People v Quinones, 91 AD3d 1302, 1303, lv denied 19
NY3d 802).

     Contrary to defendant’s contention, the court properly assessed
10 points against him under risk factor 12, for failure to accept
responsibility for his crime (see Sex Offender Registration Act: Risk
Assessment Guidelines and Commentary [Guidelines], at 15-16 [2006]).
Although defendant pleaded guilty to the crime underlying the SORA
determination, the case summary, defendant’s preplea investigation
statement, and the statements that he made during the SORA hearing did
not “reflect a genuine acceptance of responsibility as required by the
risk assessment guidelines developed by the Board [of Examiners of Sex
Offenders]” (People v Noriega, 26 AD3d 767, 767, lv denied 6 NY3d 713
[internal quotation marks omitted]; see People v Smith, 75 AD3d 1112,
1112). Rather than accepting responsibility, defendant attributed his
behavior to being under the influence of alcohol and marihuana, blamed
                                 -2-                           932
                                                         KA 15-00647

the victim, and refused to show remorse (see People v Wilson, 117 AD3d
1557, 1557-1558, lv denied 24 NY3d 902; People v Urbanski, 74 AD3d
1882, 1883, lv denied 15 NY3d 707; People v Kyle, 64 AD3d 1177, 1177,
lv denied 13 NY3d 709; Noriega, 26 AD3d at 767).

     Contrary to defendant’s further contention, the court’s
assessment of 10 points under risk factor 13, for conduct while
confined (see Guidelines, at 16), is supported by evidence
establishing that, even though the case summary described defendant’s
conduct while confined as “acceptable” (see People v Belile, 108 AD3d
890, 891, lv denied 22 NY3d 853), his record while incarcerated
included 19 tier II violations and five tier III violations (see
People v Anderson, 137 AD3d 988, 988, lv denied 27 NY3d 909; People v
Correnti, 126 AD3d 681, 681; People v Catchings, 56 AD3d 1181, 1182,
lv denied 12 NY3d 701).

     Even assuming, arguendo, that defendant was a presumptive level
two risk based on his total risk factor score, we conclude that the
court properly determined, in the alternative, that an upward
departure to a level three risk was warranted because there is clear
and convincing evidence of “aggravating . . . circumstances . . . not
adequately taken into account by the guidelines” (People v Gillotti,
23 NY3d 841, 861; see People v Witherspoon, 140 AD3d 1674, 1674-1675,
lv denied ___ NY3d ___ [Oct. 25, 2016]), including that defendant was
diagnosed with pedophilia and had difficulty controlling his urges
(see People v Moore, 130 AD3d 1498, 1498; People v Mallaber, 59 AD3d
989, 990, lv denied 12 NY3d 710; People v Seils, 28 AD3d 1156, 1156,
lv denied 7 NY3d 709).




Entered:   November 18, 2016                   Frances E. Cafarell
                                               Clerk of the Court
