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

917
KA 12-00607
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KIMBERLY THOUSAND, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Frank
P. Geraci, Jr., A.J.), entered February 21, 2012. 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 she
is a level three risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). Contrary to defendant’s contention,
Supreme Court did not err in assessing 15 points in the risk
assessment instrument based on her failure to accept responsibility
for her sex offense and her “negative removal” from sex offender
treatment due to her refusal to participate in that treatment. With
respect to defendant’s failure to accept responsibility, we conclude
that, “while defendant’s guilty plea could be viewed as an initial
step toward acceptance of responsibility” (People v Chilson, 286 AD2d
828, 828, lv denied 97 NY2d 655), her refusal to participate in sex
offender treatment “indicates a failure of genuine acceptance of
responsibility” (People v Arvelo, 77 AD3d 452, 452, lv denied 16 NY3d
703).

     With respect to her refusal to participate in sex offender
treatment, we reject defendant’s contention that she should not have
been assessed any points for that refusal because she was too
embarrassed to discuss her offense in a group setting. “[T]he risk
assessment guidelines do not contain exceptions with respect to a
defendant’s reasons for refusing to participate in treatment” (People
v Kearns, 68 AD3d 1713, 1714; see generally Sex Offender Registration
Act: Risk Assessment Guidelines and Commentary at 15-16 [2006]).
While there may be times when defendants have legitimate reasons for
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                                                         KA 12-00607

refusing to participate in treatment, courts should consider those
reasons only when determining whether to exercise their discretion to
grant downward departures (see Kearns, 68 AD3d 1713-1714). Here,
defendant did not seek a downward departure and, in any event, we
conclude that defendant’s alleged embarrassment is not a legitimate
reason to refuse to participate in sex offender treatment.




Entered:   September 27, 2013                   Frances E. Cafarell
                                                Clerk of the Court
