Opinion
2014-03-26
PEOPLE of State of New York, respondent, v. Jesus D. PEREZ, appellant.
Yasmin Daley Duncan, Brooklyn, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
Yasmin Daley Duncan, Brooklyn, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.
Appeal by the defendant from an order of the County Court, Dutchess County (Dolan, J.), dated March 25, 2008, which, after a hearing, designated him a level three 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 ( see 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 County 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, 963 N.Y.S.2d 271;People v. Finizio, 100 A.D.3d 977, 954 N.Y.S.2d 636,lv. denied20 N.Y.3d 860, 2013 WL 537111).
In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determinations sought ( seeCorrection Law § 168–n[3]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; People v. Finizio, 100 A.D.3d at 978, 954 N.Y.S.2d 636). “[E]vidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders ... or any other reliable source, including reliable hearsay” ( People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446;see People v. Mingo, 12 N.Y.3d 563, 883 N.Y.S.2d 154, 910 N.E.2d 983).
Here, the County Court's designation of the defendant as a level three sex offender under SORA is supported by clear and convincing evidence ( see People v. Robinson, 55 A.D.3d 708, 866 N.Y.S.2d 683). The defendant's unsatisfactory conduct during his incarceration, which was established, inter alia, by the case summary, warranted the assessment of 10 points under risk factor 13 ( see People v. Watson, 109 A.D.3d 463, 970 N.Y.S.2d 92). Moreover, even assuming that 15 points had been improperly assessed against the defendant under risk factor 11, based on a history of drug or alcohol abuse, subtracting the 15 points assigned for this risk factor would not alter the defendant's presumptive risk level ( see People v. Mercado, 55 A.D.3d 583, 583, 865 N.Y.S.2d 629).