Scott Flynn, the defendant herein, was convicted upon a plea, pursuant to Alford-Serrano (North Carolina v. Alford, 400 US 25 [1970]; People v Serrano, 15 NY2d 304 [1965]) of two counts of Rape in the Second Degree, under Sullivan County Indictment #89-2005. The Board of Examiners of Sex Offenders (hereinafter, "Board") has assessed Defendant 150 under the SORA Risk Assessment Instrument (hereinafter, "RAI"). As a result, the Board has recommended that this Court find Defendant to be a Level 3 Sex Offender. The People recommend that this Court assess Defendant with 160 points, an upward departure of 10 points. Defendant argues that the Board's determination of 150 points is improper.

On December 28, 2015, this Court conducted a SORA (Sex Offender Registration Act) hearing in connection with the above-named defendant's prospective release from State's Prison incarceration, following his convictions and sentences for Rape in the Second Degree, Counts One and Five of Indictment #89-2005 in violation NY Penal Law 130.30(1) as a second felony offender.^[FN1]

In April 2005, Sullivan County Grand Jury returned Indictment 89-2005, charging defendant with the crimes of Rape in the Second Degree (4counts), in violation of New York Penal Law Section 130.30 (1), Sexual Abuse in the Second Degree (4 counts), in violation of New York Penal Law Section 130.60(2), Incest (4 counts), in violation of New York Penal Law Section 255.25, Endangering the Welfare of a Child (4 counts), in violation of New York Penal Law Section 260.10(1), and Criminal Sexual Act in the Second Degree (3 counts), in violation of [*2]New York Penal Law Section 130.45(1).

The charges stemmed from defendant, on multiple occasions between October 2004 and January 2005, sexually abusing his biological daughter (having a date of birth of April 25, 1991) by engaging in sexual intercourse and deviate sexual intercourse with her. Defendant was aware that the victim of the instant offenses was his biological daughter through all criminal proceedings in connection with this case, and entered his Alford plea with full knowledge that he would be convicted of having raped his biological daughter on two occasions. This Court, at the SORA hearing, found that the victim of the offenses underlying this proceeding was defendant's biological daughter, from the evidence adduced at the hearing, the Pre-sentence Investigation Report (PSI) and the Court's file in connection with this case. People v. Mitchell, 300 AD2d 377, 377-378 [2d Dept 2002], Iv denied 99 NY2d 510 [2003] ("The hearing court properly relied upon its recollection of the plea proceeding, the pre-sentence 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 FSupp2d 456, 472; People v. Dorato, 291 AD2d 580; People v. Scott, 288 AD2d 763).").

At the SORA hearing, the defendant, by counsel, John R. Kelly, Esq., of Monticello, was assigned under 18B of the County Law, to represent Mr. Flynn, who at the beginning of the Hearing, and against this Court's advice, decided to proceed pro se without counsel. This Court determined that Mr. Kelly would remain as legal advisor. Before the hearing began, because of unruly conduct, Mr. Flynn was returned to States Prison, and the SORA hearing was conducted in absentia with Mr. Kelly, as counsel.^[FN2]

The defense raised two issues of significance during the case. Firstly, they objected to the Board of Sex Examiners Case Summary as inadmissible hearsay; and secondly, made argument that the defendant's convictions for Rape in the Second Degree do not constitute a course of conduct as condition precedent for sex registration in accordance with New York Correction Law, Article 6-C, specifically Sections 168-a, 168-l, and 168-n, and the commentary thereto.

This Court will address the issue of hearsay, and the Case Summary as hearsay, in the context of this SORA proceeding. Courts have found that case summaries are hearsay, however, as an exception to the Rule Against Hearsay. "Initially, we are unpersuaded by defendant's contention that the case summary, which was based upon a review of defendant's pre-sentence investigation, prior criminal history and post-offense behavior, was insufficient, standing alone, to constitute reliable hearsay (see People v. McFall, 93 AD3d 962, 963 [3d Dept 2012])." People v Radage, 98 AD3d 1194 [3d Dept 2012], Iv denied 20 NY3d 855 [2012]; see also, e.g., People v Gallagher, 129 AD3d 1252 [3d Dept 2015], Iv denied 26 NY3d 908 [2015] [*3]("Defendant's admissions that he consumed alcohol to self-medicate and experienced blackouts from excessive alcohol use, revealed in the case summary, constitute the requisite clear and convincing evidence to support the assessment of points under this category (see People v Harp, 127 AD3d 1529, 1530 [3d Dept 2015]; People v. Rhodehouse, 77 AD3d 1032, 1033 [3d Dept 2010], Iv denied 16 NY3d 701 [2011]; People v Swain, 46 AD3d 1157, 1158-1159 [2007]; People v Whaley, 38 AD3d 1106, 1107 [3d Dept 2007])."); Harp, supra, 137 AD3d at 1530. ("Here, the assessment of points was supported by clear and convincing evidence in the record, including information in the case summary..."); Whaley, supra, 38 AD3d at 1107 ("On this appeal, defendant maintains that he was improperly assessed points under multiple categories on the risk assessment instrument used by the County Court to determine his classification. Inasmuch as County Court's determination is supported by clear and convincing evidence, including the case summary, pre-sentence investigation report and victim impact statement, we disagree and affirm (see People v Dickison, 24 AD3d 980, 981 [3d Dept 2005], Iv denied 6 NY3d 709 [2006]).")' Dickison, supra, 24 AD3d at 981 ("SORA permits the court to consider reliable hearsay evidence (see Correction Law § 168-n(3); People v Ashley, 19 AD3d 882,883 [3d Dept 2005]); including the risk level assessment instrument, case summary and pre-sentence investigation report, in determining the proper classification (see e.g. People v. Dort, 18 AD3d 23, 25 [3d Dept 2005], Iv denied 4 NY3d 885[2005]' People v Hunt; 17 AD3d 713, 714 [3d Dept 2005], Iv denied 5 NY3d 763 [2005])."). Thus, a Case Summary submitted by the Board of Sex Examiners is "reliable hearsay" upon which this Court may make findings of fact beyond a reasonable doubt.^[FN3] See also Hunt, supra, 17 AD3d at 714 ("The case summary, pre-sentence investigation and other proof in the record provide clear and convincing evidence that defendant was properly classified as a level III sex offender (see People v Ahlers, 10 AD3d 770 [3d Dept 2004], Iv denied 4 NY3d 704 [2005])."). While Defendant points out that "information found in a case summary or presentence report need not always be credited-it may be rejected when it is unduly speculative or its accuracy is undermined by more compelling evidence," (see People v Mingo, 12 NY3d 563), Defendant has failed to present more compelling evidence to this Court.

With respect to the defendant's argument regarding a "course of conduct", this Court will consider the SORA Guidelines and the statute's Commentaries.

The People argue that under the SORA Guidelines and Commentary, a defendant can be assessed an additional 20 points under Category 4 when "he engages in either (i) two or more acts of sexual conduct, anal sexual conduct, or aggravated sexual contact, which acts are separated in time by at least 24 hours, or (ii) three or more acts of sexual contact over a period of at least two weeks. Defendant argues that because he entered an Alford plea to two counts of Rape in the Second Degree, the People have failed to show by clear and convincing evidence that the acts took place over a period of more than three months, which the defense argues the New York State Legislature has determined to be the requisite period of time for a course of conduct charged under the new Penal Law §130.30, and should be applicable to SORA registration. [*4]Defendant further argues that according to People v Hernandez, 7 Misc 3d 151 [Sup. Ct. Bronx Co. 2005], the "legislature did not intend to place upon the criminal courts...a burden to act merely as a regulatory body to confirm the determination of the Board....The court must make a de novo determination, giving due consideration to the recommendation of the Board." Defendant argues that

The argument advanced by defendant at the hearing in connection with this determination is that defendant must be convicted of an offense under a "course of conduct" as defined in the Penal Law statute to be assessed points pursuant to this factor, and that it fails as set forth herein. First, it should be noted that such a rationale would preclude this Court from ever finding that a defendant convicted of a crime or crimes occurring over an extended period, even where such conduct was undisputed, if such defendant were convicted of sex offenses prior to the enactment of such "course of conduct' sex crimes in 1996, should be assessed points under this factor. This Court opines that such a result is clearly and unequivocally contrary to the intent of this State's Sex Offender Registration Act (SORA) and contrary to the Guidelines informing this Court's SORA risk level determinations (see infra).

To what extent can a SORA Court use the allegations in the indictment that were dismissed in satisfaction of a plea bargain to the indictment? This Court also notes that it is not required to find the defendant was not guilty or innocent of the additional offenses with which he was charged. People v. Rivera, 101 AD2d 981, 982 [3d Dept 1984], affirmed 65 NY2d 661[1985] ("A dismissal in satisfaction of a plea is not an acquittal which would preclude a prosecutor from inquiring about the underlying acts of the crime because it is not a dismissal on the merits (People v Alberti, 77 AD2d 602, 603 [2d Dept 1980], Iv denied 51 NY2d 728 [1980], cert den 449 US 1018 [1980]).").

It can be noted that it was undisputed throughout the criminal proceedings in connection with this case that defendant had "weekend" visitations with his daughter at the time of his commission of the offenses underlying this proceeding. This Court takes judicial notice that "weekends" reasonably include Friday nights, Saturdays and Sundays. October 31, 2004, the date of defendant's latest possible "weekend" visitation with his daughter in October 2004, was a Sunday; further, the first Friday in November, 2004, was November 5, 2004. Thus, by clear and convincing evidence, this Court finds that defendant's convictions for raping his daughter once in October 2004 and once in November 2004, under the circumstances of this case which include that defendant had only "weekend" visitation with his daughter, reasonably compels a conclusion that those acts were separated by at least 24 hours and thus for risk assessment purposes are included a course of conduct, even though not more than three months in duration.

Next, this Court's consideration of defendant's Alford plea in connection with its analysis of defendant's acceptance of responsibility is not taken in violation of any of defendant's rights, nor does it violate the terms of defendant's negotiated criminal disposition. This proceeding is wholly collateral from the criminal proceedings underlying defendant's convictions. "The sex offender risk level determination is regulatory, rather than criminal, in nature (see People v [*5]Stevens 91, NY2d 270, 274-275 [1998]), and is not intended to effect punishment (see People v Clark, 261 AD2d 97 [3d Dept 2000], Iv denied 95 NY2d 833 [2000])." Mitchell, supra, 300 AD2d at 378. "[S]ince the purpose of certification is administrative and ministerial rather than punitive, we find the consequences to be collateral, thereby obviating the need for either County Court or counsel to have informed defendant that certification was a necessary outcome of his plea" (Clark, supra, 261 AD2d at 100); therefore, review of his acceptance of responsibility in the context of his Alford plea has no bearing upon the proceedings or negotiations had in connection with the disposition of the criminal proceedings against defendant in connection with the Indictment underlying this proceeding. "[W]e have previously clarified that a SORA risk level determination is not part of the criminal proceedings. As opposed to a punitive function, the SORA determination serves both an administrative and ministerial purpose (see Clark, supra, 261 AD2d at 100). It protect[s] communities by notifying them of the presence of individuals who may present a danger and enhancing law enforcement authorities ability to fight sex crimes' (Doe v Pataki, supra, 1270 F3d at 1276). Moreover, a criminal action terminates upon sentencing whereas a SORA determination is deemed neither an amendment to the judgment of conviction nor a re-sentencing (see People v Stevens, 91 NY2d 270, 277 [1998])." Dort, supra, 18 AD3d at 25.

Consequently the Defendant's negotiation of an Alford plea may appropriately be considered in the context of this collateral proceeding as a failure to accept responsibility for the purposes of risk assessment. People v J.G., 171 Misc 2d 440 [Sup Ct Richmond Co 1996] ("Even though the defendant did not admit the offense charged, he did plead guilty to it. Therefore his lack of taking responsibility for his actions is a factor rightfully considered by this court in assessing points against a defendant on the SORA worksheet for classification as a sex offender. In short, the defendant cannot have it both ways. He cannot protest his innocence while pleading guilty by way of an Alford-Serrano plea and then claim that no consequences or conditions subsequent to the plea should apply to him."). Indeed, even a non-Alford guilty plea, alone may be considered an insufficient acceptance of responsibly. People v. Marinconz, 178 Misc 2d 30, 34 [Sup Ct Bronx Co 1998] ("A guilty plea may provide some evidence of a defendant's acceptance of responsibility. However, it does not, by itself, constitute a sincere acknowledgment of personal culpability (see, J.G., supra, 171 Misc 2d 440)."). "The Guidelines themselves stress that both the Board and the assessing court should examine the offender's most recent credible statements and should seek evidence of genuine acceptance of responsibility (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15 [Nov. 1997]). Here, there is no such genuine acceptance of responsibility." Marinconz, supra, 178 Misc 2d at 35. "The circumstances of defendant's plea and sentencing, viewed as a whole, do not demonstrate a genuine acceptance of responsibility (see Marinconz, supra, 178 Misc 2d at 34-35)." People v. Walker, 77 AD3d 450 [1st Dept 2010], Iv denied 15 NY3d 716 [2010].

In the instant case the Defendant also raises an issued as to what extent may the Court consider the defendant's lack of participation in Sex Offender Treatment Programs as part of the defendant's failure to accept responsibility. "County Court also properly assessed 15 points based upon defendant's failure to accept responsibility, as evidenced by his refusal to participate [*6]in sex offender treatment (see People v Lockett, 67 AD3d 1266, 1267 [3d Dept 2009], Iv denied 14 NY3d 708 [2010])." Radage, supra, 98 AD3d at 1195.

"The Guidelines themselves note that an offender who does not accept responsibility for his conduct is poor prospect for rehabilitation." People v Salaam, 174 Misc 2d 726, 738 [Sup Ct NY Co 1997]. Defendant points this Court to no evidence that he has accepted responsibility for his criminal sexual acts. Indeed, defendant has never, to the best knowledge of this Court, accepted any responsibility for his crimes, not only because he negotiated an Alford plea, but because he failed, in toto, to comply with this Court's recommendation that he participate in Sex Offender counseling and Treatment while incarcerated. He has refused such treatment. Defendant's failure to engage in any treatment supports the serious concerns of this Court with respect to his risk to the community upon his release. "The guidelines add five points if the offender has refused or been expelled from treatment [to the ten points to be scored where an offender denied responsibility but nonetheless engages in treatment] since such conduct is powerful evidence of the offender's continued denial and his unwillingness to alter his behavior." Guidelines, supra, at 21.

"A defendant may properly be assessed points under SORA for refusing to accept responsibility for his actions (see People v. Lewis, 37 AD3d 689 [2d Dept 2007], Iv denied 8 NY3d 814 [2007]; People v Fortin, 29 AD3d 765 [2d Dept 2006], Iv denied 7 NY3d 712 [2006]; People v. Mitchell, supra, 300 AD2d 377). The defendant's argument that the imposition of points in these circumstances violated his Fifth Amendment right against self-incrimination is without merit. The right is applicable where a person is confronted with a substantial and real hazard of self-incrimination, not where the danger is trifling or imaginary (see Marchetti v United States, 390 US 39, 53 [1968]). Since the defendant has already been prosecuted for the offenses that he claims he is being required to admit, and is therefore protected by the double jeopardy clause from further prosecution (see U.S. Const, Amend V; NY Const, art I, §6; CPL 40.20(1); North Carolina v Pearce, 395 US 711, 717 [1969]; People v Biggs, 1 NY3d 225, 231 [2003]), he faces no such substantial or real hazard of self-incrimination." People v. Palladino, 46 AD3d 864, 865-866 [2d Dept 2007], Iv denied 10 NY3d 704 [2008].

This Court is mindful of defendant's objections to this Court's assessment of certain numerical points as set forth above. Even assuming, arguendo, that defendant's arguments have merit, although those arguments have been considered and rejected by this Court, the Court finds that "[a] mere mechanical application of the Guidelines is not the appropriate manner in which to classify this offender. As risk assessment determinations become routine, the sentencing court must continue to fully exercise its independent judgment to ensure an accurate final judicial determination given the importance of the individual and public interests involved in designating an appropriate risk level. Here, there is clear and convincing evidence of the existence of aggravating factors of a kind, or to a degree, not otherwise taken into consideration by the Guidelines." Marinconz, supra, 178 Misc 2d at 39.

Based on the foregoing, it is hereby

ORDERED that pursuant to Corrections Law, §168-d(1)(a), this Court certifies that Defendant is a sex offender required to register by the New York State Sex Offender Registration Act; and it is further

ORDERED that Defendant is hereby noticed of his duty to register and verify, in accordance with the New York Sex Offender Registration Act; and it is further

ORDERED that Defendant shall read and sign the forms required by the Division of Criminal Justice Services and to complete said forms accurately and truthfully; and it is further

ORDERED that Defendant, herein, is designated as a Sexual Predator and classified a LEVEL III HIGH RISK offender.

This shall constitute the Decision and Order of this Court.