People v. Donhauser

Feb 2, 2007
Appeal No. 2
Versions:37 A.D.3d 1053
829 N.Y.S.2d 773

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). We reject the contention of defendant that County Court erred in assessing a total of 15 points on the risk assessment instrument for failure to accept responsibility. Defendant entered an Alford plea (see North Carolina v Alford, 400 US 25 [1970]) to the charge of rape in the third degree (Penal Law § 130.25 [2]). Defendant thereafter denied that he was guilty of that charge to a counselor at the prison and refused to enter a sex offender treatment program. An Alford plea, coupled with denial of guilt thereafter, is sufficient to establish an offender‘s failure to accept responsibility (see People v Matthie, 34 AD3d 987 [2006]; cf. People v Gonzalez, 28 AD3d 1073, 1074 [2006]).

We also reject the further contention of defendant that the court erred in assessing 15 points for his release without supervision. The record contains clear and convincing evidence establishing that defendant served the maximum prison sentence and was released without supervision (see People v Stevenson, 28 AD3d 1248, 1249 [2006], lv denied 7 NY3d 707; People v Swackhammer, 25 AD3d 892 [2006]).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence imposed for criminal possession of a weapon in the third degree and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for resentencing on count two of the superior court information.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of one count each of burglary in the second degree (Penal Law § 140.25 [1] [a]) and criminal possession of a weapon in the third degree (§ 265.02 [1]), and two counts of burglary in the third degree (§ 140.20). Contrary to defendant‘s contention, the sentence is not unduly harsh or severe. We conclude, however, that County Court erred in sentencing defendant as a second violent felony offender to a determinate term of imprisonment on the count of criminal possession of a weapon in the third degree under subdivision (1) of Penal Law § 265.02 because that crime is not a violent felony offense (see § 70.02 [1] [c]). Rather, defendant should have been sentenced as a second felony offender to an indeterminate term of imprisonment on that count (see § 70.06 [3] [d]; [4] [b]). We therefore modify the judgment by vacating the sentence imposed for criminal possession of a weapon in the third degree, and we remit the matter to County Court for resentencing on count two of the superior court information.