Steven Banks, New York, N.Y. (Amy Donner of counsel), for appellant.
Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart of counsel), for respondent.
MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, SYLVIA HINDS-RADIX, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated July 25, 2008, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
ORDERED that the order is affirmed, without costs or disbursements.
Correction Law § 168-n(3) requires a court making a risk level determination pursuant to the Sex Offender Registration Act (Correction Law article 6-C; hereinafter SORA) to "render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based" (Correction Law § 168-n). Here, the Supreme Court failed to adequately set forth its findings of fact and conclusions of law in its order. However, since the record is sufficient for this Court to make its own findings of fact and conclusions of law, remittal is not required ( see People v Finizio, 100 A.D.3d 977 ; People v Thompson, 95 A.D.3d 977, 977; People v Harris, 93 A.D.3d 704, 704; People v Crandall, 90 A.D.3d 628, 629; People v Lashway, 66 A.D.3d 662, 662; People v Guitard, 57 A.D.3d 751, 751).
"In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determinations sought" ( People v Finizio, 100 A.D.3d at 978; see Correction Law § 168-n; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006 ed]; People v Hewitt, 73 A.D.3d 880 ; People v Chambers, 66 A.D.3d 748, 748; People v Bright, 63 A.D.3d 1133, 1134; People v Hardy, 42 A.D.3d 487 ). " In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders... or any other reliable source, including reliable hearsay'" ( People v Finizio, 100 A.D.3d at 978, quoting People v Crandall, 90 A.D.3d at 629; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006 ed]; People v Mabee, 69 A.D.3d 820, 820; see also People v Mingo, 12 N.Y.3d 563 ).
The only points challenged by the defendant before the Supreme Court were 10 points requested by the People under risk factor one for the use of forcible compulsion, which points were not assessed by the Board of Examiners of Sex Offenders (hereinafter the Board) on its risk assessment instrument (hereinafter RAI), and 30 points requested by the People under risk factor three, based on the number of victims, rather than the 20 points assessed by the Board under that risk factor. The assessment of these points was supported by clear and convincing evidence in the record in the form of the grand jury minutes, the case summary, and the presentence report. Accordingly, the Supreme Court properly assessed the defendant 140 total points, rendering him a presumptive level three sex offender.
A court has the discretion to depart from the presumptive risk level, based upon the facts in the record ( see People v Harris, 93 A.D.3d at 705 ; People v Bowens, 55 A.D.3d 809, 810; People v Taylor, 47 A.D.3d 907, 907; People v Burgos, 39 A.D.3d 520, 520; People v Hines, 24 A.D.3d 524, 525). A departure from the presumptive risk level is warranted where "there exists an aggravating or mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [2006 ed]; see People v Harris, 93 A.D.3d at 705; People v Bowens, 55 A.D.3d at 810; People v Taylor, 47 A.D.3d at 908; People v Burgos, 39 A.D.3d at 520; People v Hines, 24 A.D.3d at 525). "A defendant seeking a downward departure need only establish the existence of an appropriate mitigating factor by a preponderance of the evidence" ( People v Harris, 93 A.D.3d at 705-706; see People v Wyatt, 89 A.D.3d 112, 127-128). " A sex offender's successful showing by a preponderance of the evidence of facts in support of an appropriate mitigating factor does not automatically result in the relief requested, but merely opens the door to the SORA court's exercise of its sound discretion upon further examination of all relevant circumstances'" ( People v Harris, 93 A.D.3d at 706, quoting People v Wyatt, 89 A.D.3d at 127). Furthermore, the SORA court is not bound by the Board's recommendation of a downward departure, and is entitled to depart from that recommendation and determine the defendant's risk level based on the record before it ( see People v Herron, 59 A.D.3d 414, 414; People v Taylor, 48 A.D.3d 775, 776; People v Walker, 47 A.D.3d 692, 693-694).
The defendant is correct that, in denying his application for a downward departure, the Supreme Court recited the incorrect "clear and convincing evidence" standard rather than the applicable "preponderance of the evidence" standard ( see People v Wyatt, 89 A.D.3d at 127-128). However, contrary to the defendant's contentions, the record does not reflect the existence of any mitigating factor warranting a downward departure. Accordingly, the Supreme Court properly denied the defendant's request for a downward departure from his presumptive designation as a risk level three sex offender.
The defendant's remaining contention is without merit.
DILLON, J.P., ANGIOLILLO, DICKERSON and HINDS-RADIX, JJ., ...