26 A.D.3d 767
N.Y. App. Div.
2006

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v JOSE NORIEGA, Appellant.

Appellate Division of the Supreme Court of New York, Fourth Department

[808 NYS2d 529]

Appeal from an order of the Monroe County Court (Patricia D. Marks, J.), dated February 27, 2004. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

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.). Contrary to defendant‘s contention, County Court did not err in assessing 10 points in the risk assessment instrument based on defendant‘s failure to accept responsibility. According to the presentence report, defendant denied that his sexual contact with the victim was forcible, asserted that the victim was “‘provoking’ him” by her behavior, and attributed his behavior to his having been under the influence of alcohol and marihuana. Those statements are in direct contradiction to the statements in defendant‘s plea allocution, wherein defendant expressly acknowledged his guilt (see People v Mitchell, 300 AD2d 377, 378 [2002]; see also People v Dort, 18 AD3d 23, 25-26 [2005]), and the “contradictory statements, considered together, do not reflect a ‘genuine acceptance of responsibility’ as required by the risk assessment guidelines developed by the Board [of Examiners of Sex Offenders]” (Mitchell, 300 AD2d at 378).

In addition, we note that, although the total points under the risk assessment instrument reflect a score of 115 points rather than the score of 125 points calculated by the court, the error is of no moment inasmuch as the correct score of 115 points is also within the range of a level three risk. Present—Pigott, Jr., P.J., Hurlbutt, Gorski, Green and Hayes, JJ.