SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

932 

KA 15-00647 

PRESENT: WHALEN, P.J., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

TERRI T. HAVENS, DEFENDANT-APPELLANT. 

JEANNIE D. MICHALSKI, CONFLICT DEFENDER, GENESEO, FOR

DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from an order of the Livingston County Court (Dennis S.

Cohen, J.), entered February 26, 2015. 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 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

([SORA] Correction Law § 168 et seq.). We reject the contention of

defendant that County Court erred in determining that he is a level

three risk. At the outset, we note that “[d]efendant failed to

request a downward departure to a level two risk, and thus he failed

to preserve for our review his contention that the court erred in

failing to afford him that downward departure from his presumptive

level three risk” (People v Quinones, 91 AD3d 1302, 1303, lv denied 19

NY3d 802). 

Contrary to defendant’s contention, the court properly assessed

10 points against him under risk factor 12, for failure to accept

responsibility for his crime (see Sex Offender Registration Act: Risk

Assessment Guidelines and Commentary [Guidelines], at 15-16 [2006]). 

Although defendant pleaded guilty to the crime underlying the SORA

determination, the case summary, defendant’s preplea investigation

statement, and the statements that he made during the SORA hearing did

not “reflect a genuine acceptance of responsibility as required by the

risk assessment guidelines developed by the Board [of Examiners of Sex

Offenders]” (People v Noriega, 26 AD3d 767, 767, lv denied 6 NY3d 713

[internal quotation marks omitted]; see People v Smith, 75 AD3d 1112,

1112). Rather than accepting responsibility, defendant attributed his

behavior to being under the influence of alcohol and marihuana, blamed
-2- 932 

KA 15-00647 

the victim, and refused to show remorse (see People v Wilson, 117 AD3d

1557, 1557-1558, lv denied 24 NY3d 902; People v Urbanski, 74 AD3d

1882, 1883, lv denied 15 NY3d 707; People v Kyle, 64 AD3d 1177, 1177,

lv denied 13 NY3d 709; Noriega, 26 AD3d at 767). 

Contrary to defendant’s further contention, the court’s

assessment of 10 points under risk factor 13, for conduct while

confined (see Guidelines, at 16), is supported by evidence

establishing that, even though the case summary described defendant’s

conduct while confined as “acceptable” (see People v Belile, 108 AD3d

890, 891, lv denied 22 NY3d 853), his record while incarcerated

included 19 tier II violations and five tier III violations (see

People v Anderson, 137 AD3d 988, 988, lv denied 27 NY3d 909; People v

Correnti, 126 AD3d 681, 681; People v Catchings, 56 AD3d 1181, 1182,

lv denied 12 NY3d 701). 

Even assuming, arguendo, that defendant was a presumptive level

two risk based on his total risk factor score, we conclude that the

court properly determined, in the alternative, that an upward

departure to a level three risk was warranted because there is clear

and convincing evidence of “aggravating . . . circumstances . . . not

adequately taken into account by the guidelines” (People v Gillotti,

23 NY3d 841, 861; see People v Witherspoon, 140 AD3d 1674, 1674-1675,

lv denied ___ NY3d ___ [Oct. 25, 2016]), including that defendant was

diagnosed with pedophilia and had difficulty controlling his urges

(see People v Moore, 130 AD3d 1498, 1498; People v Mallaber, 59 AD3d

989, 990, lv denied 12 NY3d 710; People v Seils, 28 AD3d 1156, 1156,

lv denied 7 NY3d 709). 

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court