| People v Leopold |
| 2009 NY Slip Op 04594 [63 AD3d 1631] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Leonard A.Leopold, Appellant. |
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Appeal from an order of the Supreme Court, Erie County (John L. Michalski, A.J.), enteredMarch 27, 2008. The order determined that defendant is a level two risk pursuant to the SexOffender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level two risk underthe Sex Offender Registration Act (Correction Law § 168 et seq.). Defendantfailed to preserve for our review his present contention that the Board of Examiners of SexOffenders erred in failing to compare his California offense with New York law (see generally People v Windham, 10NY3d 801 [2008]; People vSmith, 17 AD3d 1045 [2005], lv denied 5 NY3d 705 [2005]). We agree withdefendant that Supreme Court failed to set forth the requisite findings of fact and conclusions oflaw upon which it based its risk assessment determination (see Correction Law §168-n [3]). Nevertheless, we conclude that the record before us is sufficient to enable us to makeour own findings of fact and conclusions of law (see People v Pardo, 50 AD3d 992 [2008], lv denied 11NY3d 703 [2008]), and we conclude that the upward departure determining that defendant is alevel two risk is supported by clear and convincing evidence (see People v Thomas, 307AD2d 759 [2003]). Present—Scudder, P.J., Martoche, Fahey, Carni and Pine, JJ.