Opinion
No. 911 KA 22-00185
02-03-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ROBERT CORNWELL, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ROBERT WARD OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ROBERT WARD OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, AND BANNISTER, JJ.
Appeal from an order of the Onondaga County Court (Matthew J. Doran, J.), entered January 20, 2022. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that County Court applied an incorrect standard in denying his request for a downward departure. We affirm.
We agree with defendant that the court failed to set forth its findings of fact and conclusions of law as required by Correction Law § 168-n (3). Further, as defendant contends and the People correctly concede, in determining defendant's request for a downward departure the court should have applied a preponderance of the evidence standard rather than a clear and convincing evidence standard (see People v Gillotti, 23 N.Y.3d 841, 860-861 [2014]). Nevertheless, we need not remit the matter because the record is sufficient for us to "make our own findings of fact and conclusions of law" (People v Urbanski, 74 A.D.3d 1882, 1883 [4th Dept 2010], lv denied 15 N.Y.3d 707 [2010]; see People v Carlton, 78 A.D.3d 1654, 1655 [4th Dept 2010], lv denied 16 N.Y.3d 782 [2011]) and to review defendant's request under the proper standard (see People v Scott, 186 A.D.3d 1052, 1054 [4th Dept 2020], lv denied 36 N.Y.3d 901 [2020]; People v Kowal, 175 A.D.3d 1057, 1059 [4th Dept 2019]).
However, even assuming, arguendo, that defendant satisfied his burden with respect to the first two steps of the three-step analysis required in evaluating a request for a downward departure (see e.g. People v Burgess, 191 A.D.3d 1256, 1257 [4th Dept 2021]; cf. People v Harripersaud, 198 A.D.3d 542, 542 [1st Dept 2021], lv denied 38 N.Y.3d 902 [2022]; People v Palmer, 166 A.D.3d 536, 537 [1st Dept 2018], lv denied 32 N.Y.3d 919 [2019]; see generally Gillotti, 23 N.Y.3d at 861), we conclude that, after applying the third step of weighing the aggravating and mitigating factors, the totality of the circumstances does not warrant a downward departure to level two (see Scott, 186 A.D.3d at 1054; see also People v Gillotti, 119 A.D.3d 1390, 1391 [4th Dept 2014]; cf. generally People v Weatherley, 41 A.D.3d 1238, 1238-1239 [4th Dept 2007]). To the contrary, we conclude that, based on the number of defendant's charged and "uncharged sexual crimes, the facts of which were proved by clear and convincing evidence and not fully accounted for in the RAI, the SORA court did not abuse its discretion when it declined to downwardly depart from the presumptive risk level three" (People v Sincerbeaux, 27 N.Y.3d 683, 691 [2016]).