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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 47
The People &c.,
            Respondent,
        v.
Dennis Ford,
            Appellant.




          Michael C. Taglieri, for appellant.
          Anthea H. Bruffee, for respondent.




MEMORANDUM:
          The Appellate Division order should be reversed,
without costs, and the case remitted to Supreme Court for further
proceedings in accordance with this memorandum.
          In January 2009, defendant entered a livery cab and
requested that the female driver take him to a particular address
in Brooklyn.   While in the cab, defendant pointed a gun at the

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victim and stole her money and wallet.    Defendant then demanded
that she pull her pants down, and after the victim complied,
defendant inserted two of his fingers into her vagina.     Defendant
pleaded guilty to sexual abuse in the first degree and was
sentenced to a determinate term of three years imprisonment and
five years of postrelease supervision.    While imprisoned,
defendant committed 16 tier II and 4 tier III disciplinary
violations.    As a consequence of the disciplinary penalties,
defendant's violations prevented him from participating in any
sex offender treatment while incarcerated.
             In anticipation of defendant's Sex Offender
Registration Act (SORA) hearing, the Board prepared a Risk
Assessment Instrument (RAI) assessing defendant a total of 100
points, making him a presumptive level two sex offender.      As
relevant here, the Board assessed 10 points under risk factor 13
for unsatisfactory conduct while confined.    However, the Board
did not assess any points for post-offense behavior under risk
factor 12.    The Board recommended an upward departure to level
three based on the violent and opportunistic nature of
defendant's crime, his failure to participate in sex offender
treatment, and his lack of remorse for the crime.
             Supreme Court questioned whether defendant should have
been assessed points under failure to accept responsibility
because his multiple prison violations prevented him from
participating in sex offender treatment.     The People then urged


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that the court assess points under risk factor 12 or grant an
upward departure.   Defendant objected to the assessment of points
and opposed an upward departure.   Ultimately, the court assessed
15 points for failure to accept responsibility, reasoning that
defendant put "himself into a situation where he ends up in
special housing and, therefore, [could not] receive treatment."
The court, however, determined that the People failed to meet
their burden for an upward departure.    With the additional 15
points under risk factor 12, defendant was adjudicated a level
three sex offender.   The Appellate Division affirmed (People v
Ford, 112 AD3d 600), stating that "Supreme Court properly
considered . . . defendant's lengthy disciplinary record while
incarcerated, which prevented him from participating in a sex
offender treatment program, as evidence of a refusal of
treatment" (id. at 600 [citations omitted]).    This Court granted
defendant's motion for leave to appeal.
          The SORA Guidelines provide:
          "An offender who does not accept
          responsibility for his [or her] conduct or
          minimizes what occurred is a poor prospect
          for rehabilitation. Such acknowledgment is
          critical, since an offender's ability to
          identify and modify the thoughts and
          behaviors that are proximal to his [or her]
          sexual misconduct is often a prerequisite to
          stopping that misconduct."
(SORA Guidelines, at 15 [internal citation omitted]).    In
calculating an offender's risk level for post-offense behavior,
15 points are added under risk factor 12 if an "offender has


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refused or been expelled from treatment since such conduct is
powerful evidence of the offender's continued denial and his [or
her] unwillingness to alter his [or her] behavior."
Alternatively, the Board may assess an offender 10 points under
risk factor 12 for failure to accept responsibility based on
other facts indicating the defendant's lack of remorse.
             Whether a defendant's prison disciplinary violations
which prevent him or her from attending treatment can trigger an
assessment of points under risk factor 12 has not been addressed
by this Court.    We hold that defendant's inability to participate
in sex offender treatment due to his disciplinary violations was
not tantamount to a refusal to participate in treatment under the
SORA Guidelines.    Refusal contemplates an intentional explicit
rejection of what is being offered.      There is no indication here
that defendant explicitly refused treatment.     Conduct that places
a defendant in a position where he or she could not receive
treatment is not equal to refusal to participate in treatment.
Inferring refusal from a defendant's disciplinary record is not
supported by the Guidelines, which state that points should be
assessed where a defendant refuses treatment or is expelled from
treatment.
             Certainly defendant had a substantial number of
disciplinary violations.     Beyond assessing a defendant points
under risk factor 13 for his or her conduct while confined, the
People may seek an upward departure based on the RAI not


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adequately taking into account the considerable number of
disciplinary violations incurred by a defendant.            Additionally,
the People may seek an upward departure based on the defendant
not receiving sex offender treatment.           This is a route available
to the People to account for a defendant's repeated disciplinary
violations.       Supreme Court erred as a matter of law in
determining that defendant's disciplinary violations were
tantamount to a refusal to participate in sex offender treatment.
            Based upon the error of the lower courts, this
proceeding should be remitted for appropriate designation of
defendant's risk level without the assessment of 15 points under
risk factor 12 for refusal to participate in treatment.
*   *   *     *     *   *   *   *    *      *   *   *   *    *   *   *      *
Order reversed, without costs, and case remitted to Supreme
Court, Kings County, for further proceedings in accordance with
the memorandum herein. Chief Judge Lippman and Judges Read,
Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Decided March 26, 2015




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