| People v Rivera |
| 2010 NY Slip Op 04159 [73 AD3d 881] |
| May 11, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LuisRivera, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel; Christopher Casa on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Murphy, J.),dated October 3, 2008, which, after a hearing, designated him a level three sex offender pursuantto Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
At the hearing, clear and convincing evidence was presented that the defendant waspreviously convicted of a felony sex offense. That predicate felony sex offense warranted anautomatic override to a presumptive level three risk assessment (see People v Guitard, 57 AD3d751, 752 [2008]).
The defendant sought a downward departure from his presumptive level three riskassessment. The Supreme Court denied that application. However, the Supreme Court failed toset forth the findings of fact and conclusions of law upon which it based its determination(see Correction Law § 168-n [3]; People v Smith, 11 NY3d 797, 798 [2008]). Remittal is notrequired, however, as the record in this case is sufficient for this Court to make its own findingsof fact and conclusions of law (see People v Guitard, 57 AD3d at 751). Accordingly, wedo so (cf. People v Leopold, 13NY3d 923, 924 [2010]).
The defendant failed to present clear and convincing evidence of special circumstanceswarranting a downward departure (see People v Guitard, 57 AD3d at 752; People v Flowers, 35 AD3d 690[2006]). A downward departure is warranted where there exists a mitigating factor of a kind, orto a degree, that is not otherwise adequately taken into account by the Sex Offender RegistrationAct (hereinafter SORA) Guidelines (see Sex Offender Registration Act: RiskAssessment Guidelines and Commentary, at 4 [2006]; People v Taylor, 47 AD3d 907, 908 [2008]; People v Cadorette, 41 AD3d 808,809 [2007]). Here, however, the factors upon which the defendant relied to support his argumentthat a downward departure was warranted, such as his participation in a sex offender program,are adequately taken into account by the SORA Guidelines. Under these circumstances, nodownward departure was warranted (seePeople v Perez, 61 AD3d 946 [2009]). Dillon, J.P., Miller, Dickerson and Chambers,JJ., concur.