People v. Sepulveda , 2020 NY Slip Op 05464 ( 2020 )

People v Sepulveda (2020 NY Slip Op 05464)

People v Sepulveda

2020 NY Slip Op 05464

Decided on October 06, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 06, 2020
Before: Kapnick, J.P., Oing, Scarpulla, Shulman, JJ.

Ind No. 5365/10 Appeal No. 11963 Case No. 2011-02568

[*1]The People of the State of New York, Respondent,

v

Raymundo Sepulveda, Defendant-Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Elizabeth B. Emmons of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jonathon Krois of counsel), for respondent.

Order, Supreme Court, New York County (Ronald A. Zweibel, J.), entered on or about February 28, 2013, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6—C), unanimously affirmed, without costs.

The court's assessment of 15 points under the risk factor for drug or alcohol abuse was supported by clear and convincing evidence. Defendant's abstinence, while incarcerated, from using substances that are prohibited in prison was insufficient to predict his postrelease behavior (see People v Gonzalez, 48 AD3d 284, 285 [2008], lv denied 10 NY3d 711 [2008] ).

The court also properly assessed 15 points under the risk factor relating to lack of acceptance of responsibility. Defendant's refusal to participate in sex offender treatment was sufficient to demonstrate a lack of genuine acceptance of responsibility (see People v Dunning, 166 AD3d 405, 406 [1st Dept 2018], lv denied 32 NY3d 917 [2019]). The record does not support his claim that he was prevented from participating.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 6, 2020