HARESIGN, SHANE R., PEOPLE v ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
513
KA 16-00085
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
SHANE R. HARESIGN, DEFENDANT-APPELLANT.
LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Oswego County Court (Donald E. Todd,
J.), dated November 2, 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.). Contrary to defendant’s
contention, County Court did not err in assessing 10 points based on
defendant’s failure to accept responsibility. In his statements in
the presentence report and during his testimony at the SORA hearing,
defendant denied that he attempted to have sexual contact with one of
the two victims. Those statements, however, are contradicted by
defendant’s plea allocution, wherein he expressly acknowledged his
guilt (see People v Kyle, 64 AD3d 1177, 1178, lv denied 13 NY3d 709;
People v Noriega, 26 AD3d 767, 767, lv denied 6 NY3d 713).
Additionally, defendant blamed his conduct with respect to the other
victim on his drug use. Defendant’s statements “do 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 Mitchell, 300 AD2d 377, 378, lv denied 99 NY2d
510).
Contrary to defendant’s further contention, the court properly
assessed 20 points under risk factor 4, for “engaging in a continuing
course of sexual misconduct with at least one victim.” Pursuant to
the risk assessment guidelines, “an offender has engaged in a
continuing course of sexual contact when he engages in either (i) two
or more acts of sexual contact, at least one of which is an act of
sexual intercourse, oral sexual conduct, anal sexual conduct, or
aggravated sexual contact, which acts are separated in time by at
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KA 16-00085
least 24 hours, or (ii) three or more acts of sexual contact over a
period of at least two weeks” (Sex Offender Registration Act: Risk
Assessment Guidelines and Commentary at 10 [2006]). Here, the
statements by the two victims and defendant are sufficient to
establish that defendant committed three or more acts of sexual
contact over a period of at least two weeks (see generally People v
Scott, 71 AD3d 1417, 1417-1418, lv denied 14 NY3d 714). In light of
our determination, we do not address defendant’s contention that the
court erred in determining, in the alternative, that 20 points could
be assessed under risk factor 4 based upon defendant’s unlawful
surveillance of the two victims.
Entered: April 28, 2017 Frances E. Cafarell
Clerk of the Court