People v Hatcher

People v Hatcher 2015 NY Slip Op 07052 Decided on October 1, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 1, 2015
Tom, J.P., Acosta, Moskowitz, Richter, JJ.
15750 3256/09

[*1] The People of the State of New York, Respondent,

v

Anthony Hatcher, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Angie Louie of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), for respondent.

Order, Supreme Court, New York County (Ronald A. Zweibel, J.), entered on or about December 16, 2011, which adjudicated defendant a level three predicate sex offender pursuant to the Sex Offender Registration Act, unanimously affirmed, without costs.

The court properly assessed 10 points under the risk factor for acceptance of responsibility, because defendant's contradictory statements, admitting and denying his guilt, demonstrated a lack of genuine acceptance (see People v Williams, 96 AD3d 421, 422 [1st Dept 2012], lv denied 19 NY3d 813 [2012]; see also People v Mosley, 106 AD3d 1067 [2d Dept 2013], lv denied 22 NY3d 854 [2013]).

Regardless of whether the court properly assessed points under the acceptance of responsibility factor, the record supports the court' s alternative finding that a discretionary upward departure was warranted. Even without the points disputed on appeal, defendant's point score is nearly enough for a level three adjudication. The risk assessment instrument did not adequately account for the significant risk of recidivism indicated by defendant's serious criminal history (see e.g. People v Faulkner, 122 AD3d 539 [1st Dept 2014], lv denied 24 NY3d 915 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 1, 2015

CLERK