Opinion
314 KA 18–01500
03-22-2019
The PEOPLE of the State of New York, Respondent, v. Kenneth HOUCK, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY 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 (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
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 failed to adequately set forth its conclusions of fact and law, requiring remittal. Although we agree with defendant that the court's written order did not set forth its "findings of fact and conclusions of law on which the determinations are based" (§ 168–n [3]; see People v. Smith, 11 N.Y.3d 797, 798, 868 N.Y.S.2d 569, 897 N.E.2d 1050 [2008] ), we conclude that the court's written order together with its oral decision "are clear, supported by the record and sufficiently detailed to permit intelligent appellate review" ( People v. Young, 108 A.D.3d 1232, 1233, 969 N.Y.S.2d 372 [4th Dept. 2013], lv denied 22 N.Y.3d 853, 2013 WL 5658386 [2013], rearg. denied 22 N.Y.3d 1036, 981 N.Y.S.2d 351, 4 N.E.3d 362 [2013] [internal quotation marks omitted]; see People v. McCabe, 142 A.D.3d 1379, 1380, 38 N.Y.S.3d 352 [4th Dept. 2016] ).
We reject defendant's contention that the court erred in assessing 20 points under risk factor 13 for unsatisfactory conduct while confined involving sexual misconduct. The record establishes that defendant had numerous disciplinary infractions, at least one of which was related to sexual misconduct. At the very least, he was properly assessed 10 points under that category for unsatisfactory conduct (see People v. Harris, 46 A.D.3d 1445, 1446, 848 N.Y.S.2d 792 [4th Dept. 2007], lv denied 10 N.Y.3d 707, 858 N.Y.S.2d 654, 888 N.E.2d 396 [2008] ). Even assuming, arguendo, that defendant should have been assessed only 10 points under risk factor 13 and that defendant correctly asserts that the court erred in assessing 15 points under risk factor 12 for not accepting responsibility/refusing or being expelled from treatment, his presumptive risk level would not change inasmuch as the People met their burden of proving by clear and convincing evidence that defendant should have been assessed 30 points under risk factor 3 for having three or more victims (see People v. Gillotti, 23 N.Y.3d 841, 859–860, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; People v. Bernecky, 161 A.D.3d 1540, 1540–1541, 76 N.Y.S.3d 723 [4th Dept. 2018], lv denied 32 N.Y.3d 901, 2018 WL 4135030 [2018] ; see generally People v. Aldrich, 56 A.D.3d 1228, 1229, 867 N.Y.S.2d 610 [4th Dept. 2008] ). Thus, contrary to defendant's contention, he was properly classified as a presumptive level two risk and not a presumptive level one risk.
Contrary to defendant's further contention, " ‘[t]he court's discretionary upward departure [to a level three risk] was based on clear and convincing evidence of aggravating factors to a degree not taken into account by the risk assessment instrument’ " ( McCabe, 142 A.D.3d at 1380, 38 N.Y.S.3d 352 ). Those factors included the significant amount of child pornography in defendant's possession, the lengthy period of time that he collected the child pornography, the nature of the images, and his extensive activities in downloading, categorizing, and sharing the child pornography (see People v. Tatner, 149 A.D.3d 1595, 1595–1596, 53 N.Y.S.3d 445 [4th Dept. 2017], lv denied 29 N.Y.3d 916, 2017 WL 3908393 [2017] ; People v. Sczerbaniewicz, 126 A.D.3d 1348, 1349, 5 N.Y.S.3d 644 [4th Dept. 2015] ).