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People v. Salley

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


November 17, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
RASHEEM SALLEY, DEFENDANT-APPELLANT.

Order, Supreme Court, New York County (Maxwell Wiley, J.), entered on or about April 26, 2007, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs. Judgment of resentence for the underlying conviction, same court (Daniel P. FitzGerald, J.), rendered on or about July 2, 2008, resentencing defendant to a term of 3 years with 3 years' postrelease supervision, unanimously affirmed.

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.

Gonzalez, P.J., Saxe, McGuire, Acosta, Roman, JJ.

3311/04

The People met their burden of establishing, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level three sex offender adjudication. The court properly assessed 20 points for sexual misconduct while confined. Although the sexual activity was allegedly consensual and non-criminal, it warranted this assessment under the Risk Assessment Guidelines because it violated prison disciplinary rules. Furthermore, defendant's inability to refrain from forbidden sexual conduct on the occasion at issue was relevant to his potential for sexual recidivism. The court also properly assessed 15 points for refusing sex offender treatment, and defendant's arguments to the contrary are without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091117

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