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

221
KA 15-01529
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANDREW J. ASKINS, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARY P. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Ontario County Court (William F.
Kocher, J.), dated November 18, 2013. 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
(Correction Law § 168 et seq.). We reject defendant’s contention that
County Court erred in assessing 10 points in the risk assessment
instrument for failing to accept responsibility. Defendant contends
that he accepted responsibility by pleading guilty and by admitting
his guilt in sex offender therapy. In his postarrest statements to
the police, however, defendant denied any sexual contact with the
victim (see People v Teagle, 64 AD3d 549, 550). In addition, in
therapy, defendant substantially minimized the extent of the contact
he had with the victim. Taking all of defendant’s statements
together, we conclude that they “do 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 Benitez, 140 AD3d 1140, 1140-1141, lv
denied 28 NY3d 908).

     Defendant further contends that the court erred in denying his
request for a downward departure because the victim’s lack of consent
was based only on her age, and a psychologist’s evaluation of
defendant using the Static-99R found that he was at a low to moderate
risk of reoffending. Defendant’s contention is preserved for our
review only in part (see People v Iverson, 90 AD3d 1561, 1562, lv
                                 -2-                           221
                                                         KA 15-01529

denied 18 NY3d 811). In any event, we reject his contention. The
psychologist did not dispute that other risk assessment instruments
showed that defendant was at a moderate to high risk of reoffending.
In addition, while the nonforcible nature of the offense may be a
mitigating factor (see People v George, 141 AD3d 1177, 1178), the
court “was not required to consider the mitigating factor in a vacuum
without considering any aggravating factors that would weigh against a
downward departure” (People v Sincerbeaux, 27 NY3d 683, 690). Here,
defendant violated the terms of his probation by possessing
pornography, which contained themes of rape, violence, and bestiality.
That aggravating factor was not adequately taken into account by the
risk assessment instrument (see People v Widom, 143 AD3d 688, 689;
People v Burke, 139 AD3d 1268, 1269-1270, lv denied 28 NY3d 909).
Therefore, considering the “totality of the circumstances,” we
conclude that the court providently exercised its discretion in
denying defendant’s request for a downward departure (People v
Gillotti, 23 NY3d 841, 861).




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
