People v DeCastro

People v DeCastro 2012 NY Slip Op 08292 Decided on December 5, 2012 Appellate Division, Second 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 December 5, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
DANIEL D. ANGIOLILLO
SANDRA L. SGROI
ROBERT J. MILLER, JJ.
2011-04532

[*1]People of State of New York, respondent,

v

Richardson DeCastro, appellant. Steven Banks, New York, N.Y. (Lorraine Maddalo of counsel), for appellant.




Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard
Joblove and Morgan J. Dennehy of counsel; Lucas E. Wherry on the
brief), for respondent.


DECISION & ORDER

Appeal by the defendant, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Goldberg, J.), dated April 5, 2011, as, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

Contrary to the appellant's contention, the Supreme Court properly determined that he was correctly assessed 15 points under risk factor 12 by the Board of Examiners of Sex Offenders based upon his refusal to accept appropriate sex offender treatment. Although the appellant maintains that he should have received a partial assessment of only 5 points under this category because his refusal to attend treatment was motivated by a desire to avoid shame and humiliation while in prison rather than by a denial of culpability for his crime, risk factor 12 of the risk assessment instrument "do[es] not provide for [such] midrange scoring" (People v Smith, 78 AD3d 917, 918). In any event, since the language of the risk assessment instrument pertaining to risk factor 12 indicates that a refusal to participate in a sex offender treatment program automatically demonstrates an unwillingness to accept responsibility for the crime, the appellant's contention in this regard is unavailing.

The appellant's remaining contention is without merit.
MASTRO, J.P., ANGIOLILLO, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court