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People v. Smith

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


July 2, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ROBERT H. SMITH, DEFENDANT-APPELLANT.

Appeal from an order of the Livingston County Court (Dennis S. Cohen, J.), entered November 28, 2007. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.

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.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, PINE, AND GORSKI, JJ.

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.). Contrary to the contention of defendant, County Court properly assessed 10 points against him under the risk factor for acceptance of responsibility. Although defendant pleaded guilty to the crime underlying the SORA determination, the court properly concluded that the statements contained in the letter that he submitted to the Board of Examiners of Sex Offenders and the statements that he made during the SORA hearing did not "reflect a genuine acceptance of responsibility as required by the risk assessment guidelines developed by the Board [of Examiners of Sex Offenders]" (People v Noriega, 26 AD3d 767, lv denied 6 NY3d 713 [internal quotation marks omitted]; see People v Carman, 33 AD3d 1145, 1146; People v Mitchell, 300 AD2d 377, 378, lv denied 99 NY2d 510).

Contrary to the further contention of defendant, he failed to present clear and convincing evidence of special circumstances justifying a downward departure from his presumptive risk level (see People v Clark, 66 AD3d 1366, lv denied 13 NY3d 713; People v McDaniel, 27 AD3d 1158, lv denied 7 NY3d 703).

Finally, we conclude that the court's oral findings of fact and conclusions of law "are clear, supported by the record and sufficiently detailed to permit intelligent appellate review" (People v Roberts, 54 AD3d 1106, 1106-1107, lv denied 11 NY3d 713; see People v Wood, 60 AD3d 1350; People v Leibach, 39 AD3d 1093, 1094, lv denied 9 NY3d 806).

20100702

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