SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

407 

KA 13-00967 

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND VALENTINO, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

CHARLES R. WILSON, DEFENDANT-APPELLANT. 

 

KATHLEEN P. REARDON, ROCHESTER, FOR DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (AMANDA M. CHAFEE OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from an order of the Steuben County Court (Joseph W.

Latham, J.), entered June 7, 2013. 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

(Correction Law § 168 et seq.). Contrary to defendant’s contention,

County Court did not err in assessing 10 points under risk factor 12

in the risk assessment instrument, for defendant’s failure to accept

responsibility for his crime. Defendant entered an Alford plea, which

was not an admission of guilt (see People v Hazen, 47 AD3d 1091, 1092;

People v Donhauser [appeal No. 1], 37 AD3d 1053, 1053, lv denied 8

NY3d 815), and he thereafter “minimized the underlying sexual offense

and . . . denied that he performed the criminal sexual act which

formed the basis for the conviction” during an interview with the

Probation Department (People v Farrice, 100 AD3d 976, 977, lv denied

20 NY3d 859). Although defendant participated in a sex offender

treatment program while incarcerated, he denied the acts underlying

his conviction at the subsequent SORA hearing (see People v Johnson,

85 AD3d 889, 889, lv denied 17 NY3d 718; cf. People v Ireland, 50 AD3d

1592, 1593). We thus conclude that the People established by clear

and convincing evidence that defendant “fail[ed] to genuinely accept

responsibility for his conduct ‘as required by the risk assessment

guidelines’ ” (Johnson, 85 AD3d at 889).

Contrary to the further contention of defendant, the court

properly assessed 20 points against him under risk factor 4, for

“duration of offense conduct with victim.” The People met their

burden of proving that “defendant engaged in two acts of sexual
-2- 407 

KA 13-00967 

intercourse with the victim and that such ‘acts [were] separated in

time by at least 24 hours’ ” (People v Wood, 60 AD3d 1350, 1351,

quoting Sex Offender Registration Act: Risk Assessment Guidelines and

Commentary at 10; see generally Correction Law § 168-n [3]). 

Defendant failed to preserve for our review his contention that he

should not have been assessed 25 points under risk factor 2, for

sexual contact with the victim (see generally People v Smith, 17 AD3d

1045, 1045, lv denied 5 NY3d 705). In any event, that contention

lacks merit inasmuch as the People presented reliable hearsay

evidence, in the form of the victim’s statement (see § 168-n [3]),

that defendant had engaged in sexual intercourse with the victim (see

People v Law, 94 AD3d 1561, 1562, lv denied 19 NY3d 809). To the

extent that defendant contends that the court improperly assessed 10

points pursuant to risk factor 1, for the use of violence, because

forcible compulsion was not an element of the crime of which he was

convicted, it is well settled that “the court was not limited to

considering only the crime of which . . . defendant was convicted in

making its determination” (People v Feeney, 58 AD3d 614, 615; see

People v Stewart, 63 AD3d 1588, 1588, lv denied 13 NY3d 704). 

Finally, we conclude that the presentence report and the victim’s

statement provided the requisite clear and convincing evidence of

forcible compulsion (see Stewart, 63 AD3d at 1588). 

Entered: May 9, 2014 Frances E. Cafarell

Clerk of the Court