State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 10, 2014 516432 

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

JAMES F. MUNAFO SR.,

Appellant.

________________________________

Calendar Date: June 2, 2014

Before: Stein, J.P., McCarthy, Garry, Lynch and Devine, JJ.

__________

John A. Cirando, Syracuse, for appellant.

William G. Gabor, District Attorney, Wampsville (Elizabeth

S. Healy of counsel), for respondent.

__________

Garry, J.

Appeal from a judgment of the County Court of Madison

County (McDermott, J.), entered December 4, 2012, which

classified defendant as a risk level III sex offender and a

sexually violent offender pursuant to the Sex Offender

Registration Act.

In December 2003, defendant pleaded guilty in Massachusetts

to two counts of rape and abuse of a child in the first degree

and 14 counts of indecent assault and battery on a child under 14

years old, stemming from the sexual abuse of five under-aged

girls over a period of years. Defendant was released to

probation in December 2007 and, thereafter, sought to relocate to

New York. Accordingly, the Board of Examiners of Sex Offenders

completed a risk assessment instrument that presumptively
-2- 516432 

classified defendant as a risk level III sex offender (115

points) in accordance with the Sex Offender Registration Act (see

Correction Law art 6-C). Following a hearing, County Court

classified defendant as a risk level III sex offender and a

sexually violent offender. Defendant appeals, and we reverse.

The People bear the burden of establishing the proper risk

level classification by clear and convincing evidence (see

Correction Law § 168-n [3]; People v Belile, 108 AD3d 890, 890

[2013], lv denied 22 NY3d 853 [2013]). Here, we agree with

defendant's contention that the People failed to do so with

respect to the 10 points assessed by County Court under risk

factor 12, relative to acceptance of responsibility. Notably,

the Board did not assess points for this risk factor. County

Court relied upon evidence from defendant's prior incarceration

in Massachusetts suggesting that his distortions and

rationalization regarding his crimes were "entrenched and

intractable." However, defendant thereafter engaged in further

treatment. The record contains a letter from psychologist Joseph

Plaud dated June 2009, stating that defendant had been

participating with sex offender treatment since May 2008, and

opining that defendant's therapeutic treatment goals had been

met, that he did not require additional sexual offender

treatment, that he was prepared to live safely in the community,

and that he was "in the lowest risk cohort" to reoffend. We note

with concern that this expert opinion fails to squarely address

the excuses and justifications that defendant had previously

relied upon relative to his multiple serious crimes. However,

the standard of proof is high, and this more recent evidence was

wholly unrefuted at the brief hearing. In light of this

unchallenged expert opinion, we cannot find that the requisite

standard of clear and convincing evidence was met (see Sex

Offender Registration Act: Risk Assessment Guidelines and

Commentary, at 15-16 [2006]; compare People v Mosley, 106 AD3d

1067, 1068 [2013], lv denied 22 NY3d 854 [2013]; People v

Dubuque, 35 AD3d 1011, 1011 [2006]).

Accordingly, defendant's total risk factor score is reduced

by 10 points, resulting in his presumptive classification as a

risk level II sexually violent offender. However, in light of

County Court's presumptive classification of defendant as a risk
-3- 516432 

level III sex offender, it did not have the opportunity to

consider whether an upward modification was warranted; we

therefore remit the matter for such consideration (see People v

Leach, 106 AD3d 1387, 1388 [2013]; People v Stewart, 61 AD3d

1059, 1061 [2009]). In light of our holding, defendant's

remaining contentions have been rendered academic.

McCarthy and Devine, JJ., concur.

Lynch, J. (dissenting).

We respectfully dissent. The disputed issue is whether the

People proved by clear and convincing evidence that defendant

should be assessed 10 points for his failure to accept

responsibility for his conduct under risk factor 12 of the risk

assessment instrument, as County Court concluded (see Correction

Law § 168-n [3]; People v Dubuque, 35 AD3d 1011, 1011 [2006]). 

In our view, the documented proof that defendant exhibited, in

the "extreme," a "complete lack of accept[ance] of responsibility

for his sexual misconduct" and that "[h]is cognitive distortions

about the offenses and rationalizations are entrenched and

intractable" (emphases added), resulting in his failure to

successfully complete and be discharged from sex offender

treatment while incarcerated, satisfied the People's burden (see

People v Weihrich, 111 AD3d 1032, 1033 [2013], lv denied ___ NY3d

___ [June 10, 2014]). The fact that he later completed sex

offender treatment, which was a condition of his release, does

not necessarily mean that he accepted responsibility for his

actions (see People v Rogowski, 96 AD3d 1113, 1114 [2012]; People

v Legall, 63 AD3d 1305, 1306 [2009], lv denied 13 NY3d 706

[2009]). Indeed, while the Board of Examiners of Sex Offenders

did not assess points under this factor, it "question[ed] the

effectiveness of [defendant's] treatment . . . given how deeply

ingrained his cognitive distortions were about his sex offending

. . . and his own disturbing statements rationalizing his sexual

contact with his [victims]."

While County Court must consider the most recent evidence

regarding acceptance of responsibility – indeed, by statute, "the

court shall review . . . any relevant materials and evidence
-4- 516432 

submitted by the sex offender and the district attorney"

(Correction Law § 168-n [3] [emphasis added]; see People v Mingo,

12 NY3d 563, 571 [2009]) – the court is not required to credit

it, to accept it at face value or to give it more weight than

other evidence in the record. Tellingly absent from the unsworn,

single-page letter of defendant's treating psychologist is any

reference to defendant's acceptance of responsibility. 

Considering the history of defendant's failed treatment, this

omission calls into question the reliability of the report. 

County Court clearly recognized as much, pointing out that

"[t]here is nothing further in the record to indicate that the

defendant has accepted responsibility for what he did," and that

completion of treatment "does not support a contrary conclusion."

Accordingly, we would affirm County Court's classification

of defendant as a risk level III sex offender and sexually

violent offender.

Stein, J.P., concurs.

ORDERED that the judgment is reversed, on the law, without

costs, and matter remitted to the County Court of Madison County

for further proceedings not inconsistent with this Court's

decision.

ENTER:

Robert D. Mayberger

Clerk of the Court