| People v Bayron |
| 2021 NY Slip Op 02223 |
| Decided on April 08, 2021 |
| 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 and Entered: April 08, 2021
Before: Webber, J.P., Mazzarelli, González, Mendez, JJ.
Ind No. 2682/11 Appeal No. 13543 Case No. 2021-00391
v
Rafael Bayron, Defendant-Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Simon Greenberg of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Molly Morgan of counsel), for respondent.
Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered on or about January 17, 2014, which adjudicated defendant a level three predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
The court should not have assessed 15 points for lack of acceptance of responsibility based on defendant's removal from sex offender treatment due to "poor progress and participation." Defendant's removal was "not tantamount to a refusal to participate in treatment" (People v Hart,171 AD3d 497, 497 [1st Dept 2019], lv denied 33 NY3d 912 [2019]). Moreover, defendant admitted his guilt of the underlying offense and accepted responsibility. Nevertheless, even without any point assessment for that risk factor, defendant's prior conviction of a felony sex crime, automatically results in a presumptive risk level three, and we find no basis for a downward departure (see generally People v Gillotti, 23 NY3d 841 [2014]). The mitigating factors cited by defendant do not demonstrate that he poses anything other than a high risk of reoffense. Defendant committed the underlying offense after three similar prior sex offenses, and after twice having been adjudicated a level three offender. THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: April 8, 2021