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

407
KA 13-00967
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHARLES R. WILSON, DEFENDANT-APPELLANT.


KATHLEEN P. REARDON, ROCHESTER, FOR DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (AMANDA M. CHAFEE OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Steuben County Court (Joseph W.
Latham, J.), entered June 7, 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.). Contrary to defendant’s contention,
County Court did not err in assessing 10 points under risk factor 12
in the risk assessment instrument, for defendant’s failure to accept
responsibility for his crime. Defendant entered an Alford plea, which
was not an admission of guilt (see People v Hazen, 47 AD3d 1091, 1092;
People v Donhauser [appeal No. 1], 37 AD3d 1053, 1053, lv denied 8
NY3d 815), and he thereafter “minimized the underlying sexual offense
and . . . denied that he performed the criminal sexual act which
formed the basis for the conviction” during an interview with the
Probation Department (People v Farrice, 100 AD3d 976, 977, lv denied
20 NY3d 859). Although defendant participated in a sex offender
treatment program while incarcerated, he denied the acts underlying
his conviction at the subsequent SORA hearing (see People v Johnson,
85 AD3d 889, 889, lv denied 17 NY3d 718; cf. People v Ireland, 50 AD3d
1592, 1593). We thus conclude that the People established by clear
and convincing evidence that defendant “fail[ed] to genuinely accept
responsibility for his conduct ‘as required by the risk assessment
guidelines’ ” (Johnson, 85 AD3d at 889).

     Contrary to the further contention of defendant, the court
properly assessed 20 points against him under risk factor 4, for
“duration of offense conduct with victim.” The People met their
burden of proving that “defendant engaged in two acts of sexual
                                 -2-                          407
                                                        KA 13-00967

intercourse with the victim and that such ‘acts [were] separated in
time by at least 24 hours’ ” (People v Wood, 60 AD3d 1350, 1351,
quoting Sex Offender Registration Act: Risk Assessment Guidelines and
Commentary at 10; see generally Correction Law § 168-n [3]).
Defendant failed to preserve for our review his contention that he
should not have been assessed 25 points under risk factor 2, for
sexual contact with the victim (see generally People v Smith, 17 AD3d
1045, 1045, lv denied 5 NY3d 705). In any event, that contention
lacks merit inasmuch as the People presented reliable hearsay
evidence, in the form of the victim’s statement (see § 168-n [3]),
that defendant had engaged in sexual intercourse with the victim (see
People v Law, 94 AD3d 1561, 1562, lv denied 19 NY3d 809). To the
extent that defendant contends that the court improperly assessed 10
points pursuant to risk factor 1, for the use of violence, because
forcible compulsion was not an element of the crime of which he was
convicted, it is well settled that “the court was not limited to
considering only the crime of which . . . defendant was convicted in
making its determination” (People v Feeney, 58 AD3d 614, 615; see
People v Stewart, 63 AD3d 1588, 1588, lv denied 13 NY3d 704).
Finally, we conclude that the presentence report and the victim’s
statement provided the requisite clear and convincing evidence of
forcible compulsion (see Stewart, 63 AD3d at 1588).




Entered:   May 9, 2014                         Frances E. Cafarell
                                               Clerk of the Court
