| People v Pardo |
| 2008 NY Slip Op 03617 [50 AD3d 992] |
| April 22, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Nelson Pardo, Jr., Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and John F. McGoldrick of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Hollie, J.),dated November 14, 2006, which, after a hearing, designated him a level two sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Although the Supreme Court failed to set forth "the findings of fact and conclusions of law"upon which its risk assessment determination was made, as required by Correction Law §168-n (3), this Court may make its own findings of fact and conclusions of law, where, as here,the record is sufficient to do so (seePeople v Forney, 28 AD3d 446 [2006]; People v Villane, 17 AD3d 336, 337 [2005]).
The People presented clear and convincing evidence in support of the presumptive level twoclassification (see Correction Law § 168-d [3]; People v Dubuque, 35 AD3d 1011 [2006]; People v Mitchell,300 AD2d 377, 378 [2002]). Further, given that generally, the use of the risk assessmentinstrument results in the proper risk classification, departures from the presumptive risk level arethe exception, rather than the rule (seePeople v Cadorette, 41 AD3d 808, 809 [2007]; People v Guaman, 8 AD3d 545 [2004]). The appellant failed topresent clear and convincing evidence of special circumstances warranting a downward departurefrom the presumptive level two classification to a level one classification (see People v Mason, 35 AD3d 569[2006]; People v Davis, 26 AD3d364 [2006]). Ritter, J.P., Covello, Angiolillo and McCarthy, JJ., concur.