| People v Hill |
| 2008 NY Slip Op 03615 [50 AD3d 990] |
| April 22, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Elizabeth Hill, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Chambers, J.),dated December 21, 2005, which, after a hearing, designated her a level three sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The People met their burden of proving by clear and convincing evidence the facts thatsupported the defendant's adjudication as a level three sex offender (see Correction Law§ 168-n [3]; People vMorales, 33 AD3d 982 [2006]; People v Dong V. Dao, 9 AD3d 401 [2004]). Although theSupreme Court failed to set forth the findings of fact and conclusions of law upon which itsdetermination was based, as required by Correction Law § 168-n (3), remittitur is notrequired because the record is sufficient for this Court to make its own findings of fact andconclusions of law (see People vBanks, 48 AD3d 656 [2008]; People v Penson, 38 AD3d 866, 867 [2007]; cf. People v Villane, 17 AD3d 336[2005]).
Contrary to the defendant's contention, the hearing testimony, as well as the case summarysubmitted by the New York State Board of Examiners of Sex Offenders, provided clear andconvincing evidence that aggravating factors existed of a kind or to a degree not otherwiseadequately taken into account by the guidelines that would warrant an upward departure,overcoming the point deficit between a level two to a level three (see People v Burgos, 39 AD3d520 [2007]; People v Fuller, 37AD3d 689 [2007]; People vHegazy, 25 AD3d 675 [2006]; People v Inghilleri, 21 AD3d 404 [2005]; People v Guaman, 8 AD3d 545[2004]; see also People vThompson, 34 AD3d 661 [2006]). Despite the presumptive level two rating, the courtproperly departed from the defendant's presumptive risk level based upon the [*2]defendant's plea of guilty, during the pendency of this hearing, tosexually abusing her own daughter, as well as the defendant's multiple child victims and herfailure to comply with previously imposed sex offender registration requirements. Contrary to thedefendant's contentions, none of these factors were already accounted for in the risk assessmentinstrument and were all properly considered as justification for the upward departure (see People v Liguori, 48 AD3d773 [2008]; People v Turner,45 AD3d 747 [2007], lv denied 10 NY3d 704 [2008]; People v Hands, 37 AD3d 441[2007]; People v Dexter, 21 AD3d403 [2005]).
The defendant's remaining contentions are without merit. Spolzino, J.P., Lifson, Florio andDickerson, JJ., concur.