Opinion
2014-04-30
PEOPLE of State of New York, respondent, v. Lawrence BROWN, appellant.
John F. Ryan, White Plains, N.Y. (Jacqueline F. Oliva of counsel), for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.
John F. Ryan, White Plains, N.Y. (Jacqueline F. Oliva of counsel), for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from an amended order of the County Court, Westchester County (Cacace, J.), entered September 24, 2012, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the amended order is affirmed, without costs or disbursements.
The County Court's designation of the defendant as a level two sex offender under the Sex Offender Registration Act (hereinafter SORA) was supported by clear and convincing evidence ( see Correction Law § 168–n[3]; People v. Pettigrew, 14 N.Y.3d 406, 408, 901 N.Y.S.2d 569, 927 N.E.2d 1053;People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983;People v. Atkinson, 65 A.D.3d 1112, 885 N.Y.S.2d 208;People v. Bright, 63 A.D.3d 1133, 883 N.Y.S.2d 79). Contrary to the defendant's contention, in scoring the defendant pursuant to the SORA risk assessment instrument, the court adequately set forth its findings of fact and conclusions of law, and properly assessed 30 and 20 points under risk factors 3 and 7, respectively ( see Correction Law § 168–n[3]; People v. Johnson, 11 N.Y.3d 416, 419–420, 872 N.Y.S.2d 379, 900 N.E.2d 930;People v. Poole, 90 A.D.3d 1550, 935 N.Y.S.2d 773;People v. Harding, 87 A.D.3d 627, 928 N.Y.S.2d 734;People v. Bretan, 84 A.D.3d 906, 922 N.Y.S.2d 542;People v. Stella, 71 A.D.3d 970, 900 N.Y.S.2d 74;People v. Perahia, 57 A.D.3d 865, 868 N.Y.S.2d 924;see also SORA Risk Assessment Guidelines and Commentary, 2006 at 10, 12). Contrary to the defendant's contention, the position statement issued by the Board of Examiners of Sex Offenders in June 2012 does not depart from the holding in People v. Johnson, 11 N.Y.3d 416, 872 N.Y.S.2d 379, 900 N.E.2d 930, that offenders convicted of possession of child pornography are properly scored under risk factors 3 and 7.
In denying the defendant's request for a downward departure, the County Court failed to adequately set forth its findings of fact and conclusions of law ( see Correction Law § 168–n[3] ). 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. Johnson, 109 A.D.3d 972, 971 N.Y.S.2d 347,lv. denied 22 N.Y.3d 861, 2014 WL 552719;People v. Grubbs, 107 A.D.3d 771, 967 N.Y.S.2d 112;People v. Boykin, 102 A.D.3d 937, 958 N.Y.S.2d 496). Upon our review of the record, we find that it was not an improvident exercise of discretion for the County Court to deny the defendant's request for a downward departure to a level one sex offender ( see People v. Johnson, 11 N.Y.3d at 421, 872 N.Y.S.2d 379, 900 N.E.2d 930;People v. Wyatt, 89 A.D.3d 112, 127–128, 931 N.Y.S.2d 85;People v. Mendez, 79 A.D.3d 834, 912 N.Y.S.2d 416). DILLON, J.P., HALL, COHEN and HINDS–RADIX, JJ., concur.