People v. Cottom

• Decision Date: 08 July 2022
• Docket Number: 572.1 KA 21-01674
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. KIRK COTTOM, DEFENDANT-APPELLANT.
• Court: New York Supreme Court — Appellate Division

2022 NY Slip Op 04510

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
KIRK COTTOM, DEFENDANT-APPELLANT.

No. 572.1 KA 21-01674

Supreme Court of New York, Fourth Department

July 8, 2022

BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.

Appeal from an order of the Supreme Court, Monroe County (Vincent M. Dinolfo, J.), entered June 21, 2021. The order determined that defendant is a level two 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 two risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.). We affirm.

Initially, inasmuch as the record establishes that defendant did not request an adjournment, including for the purpose of permitting him to obtain additional materials pursuant to Correction Law § 168-n (3), defendant's contention that Supreme Court deprived him of due process by failing to adjourn the hearing is not preserved for our review (see People v LaRock, 45 A.D.3d 1121, 1123 [3d Dept 2007]; see generally People v Scott, 71 A.D.3d 1417, 1417 [4th Dept 2010], lv denied 14 N.Y.3d 714 [2010]).

Next, contrary to defendant's contention, we conclude that the court properly assessed 10 points under risk factor 12 based on defendant's failure to accept responsibility. The risk assessment guidelines issued by the Board of Examiners of Sex Offenders (Board) provide that "[a]n offender who does not accept responsibility for his conduct or minimizes what occurred is a poor prospect for rehabilitation" and, consequently, 10 points are properly assessed to an offender who has not accepted responsibility (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006] [Guidelines]). The Guidelines further provide that, "[i]n scoring this category, the Board or court should examine the offender's most recent credible statements and should seek evidence of genuine acceptance of responsibility" (Guidelines at 15). Here, although defendant pleaded guilty to the child pornography crimes underlying the SORA determination, the People established by clear and convincing evidence, including reliable hearsay (see Correction Law § 168-n [3]; People...