People v. Mitchell
| Decision Date | 09 December 2002 |
| Citation | 751 N.Y.S.2d 530,300 A.D.2d 377 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>REGINALD MITCHELL, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed, without costs or disbursements.
The hearing court properly relied upon its recollection of the plea proceeding, the presentence report, and the case summary of the Board of Examiners of Sex Offenders (hereinafter the Board), rather than upon the defendant's statements to the contrary, in finding that the prosecution proved by clear and convincing evidence that the defendant not only failed to accept responsibility for his crime, but also that he refused treatment (see generally Doe v Pataki, 3 F Supp 2d 456, 472; People v Dorato, 291 AD2d 580; People v Scott, 288 AD2d 763). According to a statement contained in the defendant's presentence report, the defendant "admitted his guilt stating that he was drunk and under the influence of crack and cocaine, having no recollection of it due to his condition." This statement contradicts the defendant's plea allocution in which he expressly acknowledged his guilt, and indicated that although he was intoxicated at the time, he knew what he was doing. These contradictory statements, considered together, do not reflect a "genuine acceptance of responsibility" as required by the risk assessment guidelines developed by the Board (see People v Marinconz, 178 Misc 2d 30, 35 []; People v Chilson, 286 AD2d 828 []).
The defendant contends that he was deprived of due process of law because of an amendment to Correction Law § 168-l (6) (c), and because the law, which was enacted on January 21, 2001, was amended subsequent to his risk level assessment hearing. Prior to that date, Correction Law § 168-l (6) (c) and § 168-q provided that level three sex offenders are to be included in a subdirectory of sexually violent predators. Such subdirectory was to be updated regularly and "may be computer accessible" (Correction Law § 168-q; L 2000, ch 490). On January 21, 2001, an amendment became effective that changed "may" to "shall," and added the following sentence: "Such subdirectory shall be made available at all times on the Internet via the [D]ivision [of Criminal Justice Services] homepage" (Correction Law § 168-q; L 2000, ch 490).
Contrary to the defendant's contentions, he was not deprived of his constitutional right to due process of law...
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...hearing, the Pre-sentence Investigation Report (PSI) and the Court's file in connection with this case. People v. Mitchell, 300 A.D.2d 377, 377–378, 751 N.Y.S.2d 530 [2d Dept 2002], Iv denied 99 N.Y.2d 510 [2003] (“The hearing court properly relied upon its recollection of the plea proceedi......
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...the evidence adduced during his trial, constitutes a refusal to accept responsibility for his criminal conduct (see People v. Mitchell , 300 A.D.2d 377, 751 N.Y.S.2d 530, lv. denied 99 N.Y.2d 510, 760 N.Y.S.2d 101, 790 N.E.2d 275 ; see also People v. Chilson , 286 A.D.2d 828, 731 N.Y.S.2d 8......