| People v Sterling |
| 2010 NY Slip Op 01775 [71 AD3d 654] |
| March 2, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Andre Sterling, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and JoannaHershey of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Nassau County (Kase, J.),dated January 19, 2007, which, after a hearing, designated him a sexually violent offender and alevel three sex offender pursuant to Correction Law article 6-C.
Ordered that the order is modified, on the law, by deleting the provision thereof that theappellant was to "be designated a sexually violent offender and"; as so modified, the order isaffirmed, without costs or disbursements.
Although the hearing 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 Britt, 66 AD3d 853[2009], lv denied 13 NY3d 716 [2010]).
Contrary to the defendant's contention, the hearing court's determination to designate thedefendant a level three sex offender is supported by clear and convincing evidence (seeCorrection Law § 168-n [3]; People v Mingo, 12 NY3d 563 [2009]; People v Lewis, 56 AD3d 447[2008]; People v Warren, 42 AD3d593 [2007]; People v Dominie,42 AD3d 589 [2007]). The hearing court properly assessed points for risk factor 1 based onthe defendant's and the victim's sworn statements and the defendant's testimony at his pleaallocution and sentencing (see Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 7-8 [2006] [hereinafter Guidelines]). It also properly assessedpoints for risk factor 7 because he was a stranger to the victim (see Guidelines at 12) andrisk factor 11, given his admission that he was using alcohol at the time of the offense (seeGuidelines at 15; People vBritt, 66 AD3d 853 [2009]).
However, as the People correctly concede, the Supreme Court erred in designating thedefendant a sexually violent offender (see Correction Law § 168-a [3], [7] [b]).
The defendant's remaining contentions are without merit. Mastro, J.P., Florio, Balkin andLeventhal, JJ., concur.