People v. LeBlanc

207 A.D.3d 966

172 N.Y.S.3d 227

The PEOPLE of the State of New York, Respondent,

v.Russell R. LEBLANC, Appellant.

533638

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: May 23, 2022

Decided and Entered: July 21, 2022

Joseph A. Ermeti, Public Defender, Delhi (George V. Collins III of counsel), for appellant.

John L. Hubbard, District Attorney, Delhi (Shawn J. Smith of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Pritzker, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Fisher, J. Appeal from an order of the County Court of Delaware County (Northrup Jr., J.), entered August 6, 2020, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.

In 2017, defendant pleaded guilty to rape in the third degree (see Penal Law § 130.25[1] ) and was sentenced to a prison term of four years to be followed by five years of postrelease supervision. In anticipation of his release from prison, in 2020, the Board of Examiners of Sex Offenders prepared a risk assessment instrument (hereinafter RAI) in accordance with the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA]) that presumptively classified him as a risk level three sex offender based upon his total score of 120 points. Defendant was scored as having accepted responsibility for his crime based upon his guilty plea and completion of sex offender treatment while incarcerated. Yet, in the case summary accompanying the RAI, the evaluator indicated that "[County] Court may wish to reassess this factor" based upon defendant's earlier denial of any sexual encounter with the victim in the preplea report. Following a hearing, County Court classified defendant as a risk level three sex offender with a total score of 110 points. Though not assessing any points under risk factor 7 (relationship to victim) where the RAI had assessed 20 points, the court assessed 10 points under risk factor 12 (acceptance of responsibility) where the RAI had not. Defendant appeals.

The People "bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence" in establishing risk level classification under SORA ( Correction Law § 168–n [3] ; accord People v. Harvey, 202 A.D.3d 1296, 1296–1297, 161 N.Y.S.3d 659 [2022] ). Defendant challenges County Court's assessment of 10 points under risk factor 12 (acceptance of responsibility). In assessing points under this risk factor, "the Board or [the] court should examine the offender's most recent credible statements and should seek evidence of genuine acceptance of responsibility" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]). During the preplea investigation, defendant "adamantly denied" engaging in sexual intercourse with the victim, and he further claimed that they were just holding hands and that she told him she was 17. These exculpatory statements "constitute clear and convincing evidence of defendant's failure to accept responsibility" ( People v. Colsrud, 155 A.D.3d 1601, 1601, 63 N.Y.S.3d 771 [2017] [internal quotation marks and citation omitted]). Although after making these statements defendant pleaded guilty and has successfully completed a sex offender treatment program, "which may constitute evidence of his acceptance of responsibility" ( People v. Current, 147 A.D.3d 1235, 1238, 47 N.Y.S.3d 758 [2017] ; see People v. Richardson, 197 A.D.3d 878, 880, 153 N.Y.S.3d 277 [2021], lv denied 37 N.Y.3d 918, 2022 WL 403247 [2022] ), defendant has never directly contradicted his original statements including in his letter to the Board of Examiners of Sex Offenders in which he "expressed that he has made very poor choices and decisions in his life" but does not appear to have directly accepted responsibility. Further, defendant did not make any statements accepting responsibility at the SORA hearing and continued to equivocate on the circumstances leading up to his commission of the offense. Thus, we find that the record amply supports County Court's conclusion that defendant failed to genuinely accept responsibility for his actions and its assessment of 10 points under this risk factor (see People v. DePerno, 165 A.D.3d 1351, 1352–1353, 84 N.Y.S.3d 605 [2018], lv denied 32 N.Y.3d 915, 2019 WL 690310 [2019] ; People v. Vasquez, 149 A.D.3d 1584, 1585, 52 N.Y.S.3d 806 [2017], lv denied 29 N.Y.3d 916, 2017 WL 3908423 [2017] ; People v. Askins, 148 A.D.3d 1598, 1598–1599, 50 N.Y.S.3d 704 [2017], lv denied 29 N.Y.3d 912, 2017 WL 2467479 [2017] ; see generally People v. Solomon, 202 A.D.3d 88, 160 N.Y.S.3d 30 [2021], lv denied 38 N.Y.3d 906, 2022 WL 1261737 [2022] ).

Defendant also takes issue with the assessment of 15 points under risk factor 11 (drug or alcohol abuse). The guidelines provide for the assessment of "15 points if an offender has a substance abuse history or was abusing drugs and or alcohol at the time of the offense" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]). The evidence demonstrates that defendant has not only abused drugs and alcohol in the recent past but, in addition, he...