| People v McKee |
| 2009 NY Slip Op 07606 [66 AD3d 854] |
| October 20, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v James McKee, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Margaret E. Mainusch and JoannaHershey of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Nassau County (Gulotta, J.),dated January 11, 2007, which, after a hearing, designated him a level three sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Defense counsel conceded at the hearing that the Board had accurately assigned thedefendant 135 points. Accordingly, the County Court's designation of the defendant as a levelthree sex offender under the Sex Offender Registration Act (hereinafter SORA) is supported byclear and convincing evidence (seePeople v Pardo, 50 AD3d 992 [2008]).
Although the County Court failed to specifically rule on the defendant's application for adownward departure to level one as required by Correction Law § 168-n (3), this Courtmay make its own findings of fact and conclusions of law where, as here, the record is sufficientto do so (see People v Pardo, 50AD3d 992 [2008]; People v Banks,48 AD3d 656 [2008]; People vPenson, 38 AD3d 866 [2007]; People v Forney, 28 AD3d 446 [2006]).
"[U]tilization of the risk assessment instrument will generally 'result in the properclassification in most cases so that departures will be the exception not the rule' " (People v Guaman, 8 AD3d 545[2004], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at4 [1997]). A defendant seeking a departure has the burden of establishing by clear andconvincing evidence that there are mitigating circumstances which were not considered by theguidelines (see People v Lattimore,57 AD3d 752 [2008]; People vTaylor, 47 AD3d 907 [2008]). In this case, the defendant argues that he is not a highrisk to re-offend and cites the following three factors warranting a downward departure: (1) thevictims were family members and not strangers, (2) his conduct while imprisoned wassatisfactory, and (3) he accepts responsibility for his actions. All three factors are, however,enumerated risk factors taken into consideration by the Board in making its recommendation.Thus, the defendant did not demonstrate any mitigating factors of a kind or to a degree nototherwise taken into account by the SORA Guidelines to warrant a downward departure (seeSex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [1997];People v Pietarniello, 53 AD3d475 [2008]; [*2]People v Taylor, 47 AD3d 907 [2008]).
Accordingly, the determination of the County Court to designate the defendant a level threesex offender should not be disturbed. Skelos, J.P., Covello, Leventhal and Roman, JJ., concur.