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People v. Johnson

Supreme Court of New York, Second Department

September 25, 2013

People of State of New York, respondent,
v.
Prince Johnson, appellant.

Steven Banks, New York, N.Y. (Laura Lieberman Cohen of counsel), for appellant.

Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart, Anne Grady, and Michael Shollar of counsel), for respondent.

WILLIAM F. MASTRO, J.P., PETER B. SKELOS, RUTH C. BALKIN, JOHN M. LEVENTHAL, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated October 28, 2011, which, after a hearing, designated him a level two 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[3]). 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 Eaton, 105 A.D.3d 722, 722-723; People v Finizio, 100 A.D.3d 977).

The People bear of the burden of establishing, by clear and convincing evidence, the facts supporting the assessment of points under the Guidelines issued by the Board of Examiners of Sex Offenders under SORA (see Correction Law article 6-C; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; People v Harris, 100 A.D.3d 727, 727; People v Thompson, 95 A.D.3d 977, 977). Here, the Supreme Court properly designated the defendant a level two sex offender. Contrary to the defendant's contention, clear and convincing evidence established that he had a history of drug abuse (see People v Palmer, 20 N.Y.3d 373, 377-378). Thus, the court appropriately assessed him 15 points under risk factor 11 ("Drug or Alcohol Abuse"). Including those 15 points, the total assessment of 80 points presumptively classified the defendant as a level two sex offender.

To the extent that the defendant established facts that might warrant a downward departure from his presumptive risk level designation (see People v Wyatt, 89 A.D.3d 112, 124), upon examining all of the circumstances relevant to the defendant's risk of reoffense and danger to the community, the Supreme Court providently exercised its discretion in denying the defendant's application for a downward departure (see People v Eaton, 105 A.D.3d at 723).

MASTRO, J.P., SKELOS, BALKIN and LEVENTHAL, JJ., concur.


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