Opinion
2011-11-18
The PEOPLE of the State of New York, Respondent, v. Cornell LONG, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ.
MEMORANDUM:
We previously held this case, reserved decision and remitted the matter to Supreme Court for compliance with Correction Law § 168–n (3), based on the court's failure “to set forth the findings of fact and conclusions of law upon which it based its determination” ( People v. Long, 81 A.D.3d 1432, 1433, 916 N.Y.S.2d 881). We agree with defendant that, upon remittal, the court failed to set forth its findings of fact and conclusions of law in an adequate manner, i.e., the court failed to note the “evidence upon which” its determination was based ( People v. Smith, 11 N.Y.3d 797, 798, 868 N.Y.S.2d 569, 897 N.E.2d 1050), and the court was required to provide more than “a generic listing of factors” ( People v. Miranda, 24 A.D.3d 909, 911, 806 N.Y.S.2d 729). Nevertheless, we conclude that “the record before us is sufficient to enable us to make our own findings of fact and conclusions of law, thus rendering [further] remittal unnecessary” ( People v. Urbanski, 74 A.D.3d 1882, 1883, 903 N.Y.S.2d 648, lv. denied 15 N.Y.3d 707, 2010 WL 3583295; see People v. Pardo, 50 A.D.3d 992, 854 N.Y.S.2d 899, lv. denied 11 N.Y.3d 703, 864 N.Y.S.2d 390, 894 N.E.2d 654).
Upon exercising our authority to make findings of fact and conclusions of law, we conclude that the court properly determined that defendant is a level two risk under the Sex Offender Registration Act (Correction Law § 168 et seq.). In the prior appeal, we determined that the court properly assessed 15 points against defendant under the risk factor for number and nature of prior crimes ( Long, 81 A.D.3d at 1433, 916 N.Y.S.2d 881), and we now conclude that, contrary to defendant's contention, the People met their burden of proving that 15 points should be assessed against him under the risk factor for drug or alcohol abuse. Because “[a]n assessment of 15 points is warranted under that risk factor where[, inter alia,] ‘an offender ... was abusing drugs and or alcohol at the time of the offense’ ” ( People v. McClam, 63 A.D.3d 1588, 1589, 880 N.Y.S.2d 432, lv. denied 13 N.Y.3d 704, 2009 WL 2871188, quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15 [2006] ), we conclude that defendant's admission that he was drinking alcohol during the 1 1/2-hour period immediately preceding his offense provides a sufficient basis upon which to assess the points ( see People v. Robinson, 55 A.D.3d 708, 708, 866 N.Y.S.2d 683, lv. denied 11 N.Y.3d 713, 873 N.Y.S.2d 268, 901 N.E.2d 762).
Inasmuch as defendant “does not contest the court's determination with respect to any of the other risk factors[,] we therefore do not address them” ( Urbanski, 74 A.D.3d at 1883, 903 N.Y.S.2d 648). Thus, we conclude that the remainder of the court's determination is valid, and that the court properly determined defendant to be a level two risk.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.