People v Dunning

People v Dunning 2018 NY Slip Op 07355 Decided on November 1, 2018 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 November 1, 2018
Renwick, J.P., Richter, Manzanet-Daniels, Gische, Tom, JJ.
7534 5424/11

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

v

Garth Dunning, Defendant-Appellant.

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

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

Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered on or about March 3, 2015, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed 15 points under the risk factor relating to lack of acceptance of responsibility. Although defendant pleaded guilty to the underlying sex crime, he refused to participate in sex offender treatment. The refusal itself was sufficient to demonstrate a lack of genuine acceptance of responsibility (see People v Quinones, 157 AD3d 834 [2d Dept 2018], lv denied 31 NY3d 903 [2018]; see also People v Williams, 96 AD3d 421, 422 [1st Dept 2012], lv denied 19 NY3d 813 [2012]). The court also properly assessed points under the risk factor for contact under clothing, based on clear and convincing evidence that defendant made contact with the victim by reaching under her shirt and touching her breasts, regardless of what other clothing she might have been wearing under her shirt (see People v Sorias, 153 AD3d 1188 [1st Dept 2017], lv denied 30 NY3d 908 [2017]).

We do not find that there was any overassessment of points, or any other basis for a downward departure (see generally People v Gillotti, 23 NY3d 841 [2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 1, 2018

CLERK