Opinion
2014-04-30
PEOPLE of State of New York, Respondent, v. Andrew TISMAN, appellant.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel; Phillip Scholz on the brief), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel; Phillip Scholz on the brief), for respondent.
Appeal by the defendant, as limited by his brief, from so much of an order of the County Court, Suffolk County (Kahn, J.), dated March 22, 2013, as, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
At a hearing conducted pursuant to the Sex Offender Registration Act ( see Correction Law article 6–C; hereinafter SORA) to determine the defendant's SORA risk level, the defendant requested that the County Court downwardly depart from his presumptive risk level, relying, inter alia, upon his participation in a sex offender treatment program. In this respect, the defendant identified an appropriate mitigating factor that could provide a basis for a discretionary downward departure, as the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary recognizes that “[a]n offender's response to treatment, if exceptional, can be the basis for a downward departure” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 17 [2006]; see People v. Jackson, 114 A.D.3d 739, 980 N.Y.S.2d 152;People v. Pendleton, 112 A.D.3d 600, 975 N.Y.S.2d 908,lv. denied 22 N.Y.3d 861, 2014 WL 593202;People v. Roldan, 111 A.D.3d 909, 975 N.Y.S.2d 681,lv. denied 22 N.Y.3d 862, 2014 WL 642792;People v. Washington, 84 A.D.3d 910, 911, 923 N.Y.S.2d 151).
Although the County Court failed to set forth findings of fact and conclusions of law to support its denial of the defendant's request for a downward departure on the basis of his participation in a sex offender treatment program, remittal to the County Court is not required since the record is sufficient for this Court to make its own findings of fact and conclusions of law ( see People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584;People v. Harris, 93 A.D.3d 704, 940 N.Y.S.2d 127). Upon our review of the record, we conclude that the defendant failed to establish facts in support of this mitigating factor by a preponderance of the evidence, because he did not establish that his response to treatment was exceptional ( see People v. Jackson, 114 A.D.3d 739, 980 N.Y.S.2d 152;People v. Pendleton, 112 A.D.3d 600, 975 N.Y.S.2d 908;People v. Roldan, 111 A.D.3d 909, 975 N.Y.S.2d 681;People v. Guzman, 110 A.D.3d 863, 973 N.Y.S.2d 310,lv. denied 22 N.Y.3d 859, 2014 WL 113763;People v. Perez, 104 A.D.3d 746, 960 N.Y.S.2d 503).
The defendant's remaining contention is without merit.
Accordingly, the County Court properly denied the defendant's application for a downward departure from his presumptive SORA risk level. SKELOS, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.