| People v Kinlock |
| 2009 NY Slip Op 07813 [66 AD3d 980] |
| October 27, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v David Kinlock, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller ofcounsel), for respondent.
Appeal by the defendant from an order of the County Court, Dutchess County (Dolan, J.),dated September 25, 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.
The County Court's designation of the defendant as a level three sex offender under the SexOffender Registration Act (Correction Law art 6-C) is supported by clear and convincingevidence (see People v Pardo, 50AD3d 992 [2008]). The defendant was properly designated a level three sex offender basedupon the recommendation of the Board of Examiners of Sex Offenders (hereinafter the Board),as well as the facts contained in the case summary and the risk assessment instrument (seeCorrection Law §§ 168-n, 168-l [6] [c]; People v Gonzalez, 63 AD3d 812 [2009], lv denied 13NY3d 708 [2009]). Further, the defendant did not contest his risk factor score of 125 on the risk assessment instrument, which placed him in thelevel three risk level classification.
Although the County Court failed to make written findings of fact and conclusions of law asrequired by Correction Law § 168-n (3), this Court may make its own findings of fact andconclusions of law where, as here, the record is sufficient to do so (see People v Pardo, 50 AD3d 992[2008]; People v Banks, 48 AD3d656 [2008]; People v Forney,28 AD3d 446 [2006]).
Contrary to the defendant's contention, defense counsel was not ineffective for failing tocontest the recommendation of the Board. After consulting with counsel, the defendant chose notto contest any of the findings of the Board (see People v Sceravino, 57 AD3d 503 [2008]). Based uponcounsel's familiarity with the case and the factual basis provided in the case summary for theassessment of points, and since the defendant did not inform counsel that he wished to contestany factual issue, it was reasonable for counsel to conclude that contesting the findings of theBoard would not meet with success (seePeople v Stultz, 2 NY3d 277 [2004]; People v Reid, 59 AD3d 158 [2009]; People v Carey, 47 AD3d 1079[2008]).[*2]
Accordingly, the determination of the County Court todesignate the defendant a level three sex offender should not be disturbed. Dillon, J.P., Florio,Belen and Roman, JJ., concur.