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

535
KA 16-00333
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BENANCIO VASQUEZ, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from an order of the Monroe County Court (James J.
Piampiano, J.), entered January 14, 2016. The order determined that
defendant is a level two 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 two risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). We reject defendant’s
contention that County Court erred in assessing 10 points against him
for failure to accept responsibility. Although defendant pleaded
guilty to the crime of course of sexual conduct against a child in the
second degree and completed a sex offender treatment program, he made
statements denying his guilt to a probation officer preparing the
presentence report, and his statement “I accept responsibility” was
suspect given its timing at the SORA hearing (see generally People v
Tilley, 305 AD2d 1041, 1041-1042, lv denied 100 NY2d 588). “[T]he
court properly concluded that defendant’s statement[s] 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 Jamison, 137 AD3d 1742, 1743, lv denied 27 NY3d
910 [internal quotation marks omitted]; see People v Hiram, 142 AD3d
1304, 1305, lv denied 28 NY3d 911; People v Noriega, 26 AD3d 767, 767,
lv denied 6 NY3d 713).

     We reject defendant’s further contentions that the court erred in
assessing 20 points against him under risk factor 3, for having two
victims, and 30 points against him under risk factor 5, for the
victims being under 10 years of age. “[I]t is well settled that, in
determining the number [and age] of victims for SORA purposes, the
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                                                        KA 16-00333

hearing court is not limited to the crime of which defendant was
convicted” (People v Robertson, 101 AD3d 1671, 1671). Here, the court
properly considered “reliable hearsay evidence” of the case summary
and presentence report, which indicated both that defendant admitted
sexual contact with his two daughters, and that the victims stated
that the abuse occurred when they were between the ages of 4 and 13
(People v Sincerbeaux, 27 NY3d 683, 688; see People v Mingo, 12 NY3d
563, 573).




Entered:   April 28, 2017                      Frances E. Cafarell
                                               Clerk of the Court
