Supreme Court, Appellate Term, First Department, April 15, 2024

Legal Aid Society (Danielle A. Bernstein of counsel) for appellant.

Alvin Bragg, District Attorney (Nathan Morgante of counsel), for respondent.

Order (Heidi C. Cesare, J.), entered April 22, 2019, reversed, on the law, without costs, and the matter remitted for further proceedings in accordance herewith.

The court's point assessment for defendant's history of substance abuse was supported by clear and convincing evidence, including defendant's multiple prior drug convictions (see People v Wilkens, 33 AD3d 399 [1st Dept 2006], lv denied 8 NY3d 801 [2007]), and his treatment for substance abuse (see People v Gonzalez, 48 AD3d 284 [1st Dept 2008], lv denied 10 NY3d 711 [2008]).

However, the court should not have assessed 10 points under risk factor 12 for failure to accept responsibility. Defendant's denials of guilt were made at the time his appeal from his underlying conviction was pending. Requiring defendant to accept responsibility could potentially result in his admissions being used against him in any retrial, violating his Fifth Amendment right against self-incrimination (see People v Williams, 223 AD3d 628 [1st Dept 2024]; People v Krull, 208 AD3d 163 [1st Dept 2022], appeal dismissed 39 NY3d 1093 [2023]). Accordingly, defendant should have been assessed 70 points, rendering him a presumptive risk level one offender. Because this erroneous point assessment affected the People's decision to not argue for an upward departure at the SORA hearing, the People are entitled to seek an upward departure on remand (see People v Weber, 40 NY3d 206 [2023]; People v Reynoso, 224 AD3d 416 [1st Dept 2024]).

Hagler, P.J., Brigantti and Perez, JJ., concur.