SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
687
KA 12-01691
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
TERRYL NOYES, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Erie County Court (Kenneth F. Case,
J.), entered March 23, 2012. The order determined that defendant is a
level two risk pursuant to the Sex Offender Registration Act.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he
is a level two risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.). We reject defendant’s contention that
County Court erred in assessing points against him under risk factors
3 (number of victims), 7 (relationship between offender and victim),
and 12 (acceptance of responsibility—expelled from or refused
treatment). With respect to risk factor 12, the case summary
establishes that defendant was expelled from his sex offender
treatment program for exhibiting “hostility and a poor attitude” and
for continuing to deny responsibility for the underlying sex offense.
Thus, the court properly assessed defendant 15 points under risk
factor 12 (see People v Lewis, 37 AD3d 689, 690, lv denied 8 NY3d 814;
Sex Offender Registration Act: Risk Assessment Guidelines and
Commentary at 15-16 [2006]). Notably, according to the case summary,
defendant’s denial of responsibility was made despite his guilty plea,
and any danger of self-incrimination was therefore eliminated inasmuch
as “defendant has already been prosecuted for the offense” that he
would be required to admit in treatment (People v Paladino, 46 AD3d
864, 865-866, lv denied 10 NY3d 704). With respect to the 30 points
assessed under risk factor 3 and the 20 points assessed under risk
factor 7, we note that the underlying conviction was a federal offense
to which defendant pleaded guilty to receiving child pornography (18
USC 2252 [a] [2]). Although the Court of Appeals has stated that
“[i]t does not seem that factor 7 was written with possessors of child
pornography in mind” (People v Johnson, 11 NY3d 416, 420), the Court
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KA 12-01691
of Appeals determined that points were properly assessed under risk
factor 7 in a case where the defendant was convicted of possessing
child pornography (see id.; see also People v Poole, 90 AD3d 1550,
1550-1551). Consequently, we conclude that the court here properly
assessed points under risk factor 7. We further conclude that the
court properly assessed points under risk factor 3 because there were
more than three victims (see Poole, 90 AD3d at 1550).
Entered: July 19, 2013 Frances E. Cafarell
Clerk of the Court