People v Arvelo

People v Arvelo 2010 NY Slip Op 07242 [77 AD3d 452] October 12, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 15, 2010

The People of the State of New York, Respondent,
v
Alfredo Arvelo, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Ellen Dille of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.

Order, Supreme Court, New York County (Arlene R. Silverman, J.), entered on or about May 28, 2008, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed 10 points for defendant's failure to accept responsibility for his sex offense. Although defendant pleaded guilty to that crime, he refused to be interviewed by the Department of Probation which indicates a failure of genuine acceptance of responsibility. Furthermore, while the court did not use the phrase upward departure, its ruling includes statements which indicate that it believed defendant's overall criminal record to be so serious as to warrant a discretionary level three adjudication aside from defendant's point score. The record supports that conclusion, and we affirm the level three adjudication on that basis as well (see People v Larkin, 66 AD3d 592, 593 [2009], lv denied 14 NY3d 704 [2010]). Concur—Mazzarelli, J.P., Sweeny, Moskowitz, Acosta and RomÁn, JJ.