| People v Urbanski |
| 2010 NY Slip Op 05439 [74 AD3d 1882] |
| June 18, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MichaelUrbanski, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from an order of the Supreme Court, Erie County (John L. Michalski, A.J.), enteredNovember 20, 2008. The order determined that defendant is a level three risk and a predicate sexoffender pursuant to the Sex Offender Registration Act.
It is hereby ordered that the order so appealed from is unanimously modified on the law byvacating the determination that defendant is a predicate sex offender and as modified the order isaffirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level three risk anda predicate sex offender under the Sex Offender Registration Act ([SORA] Correction Law§ 168 et seq.). With respect to the finding that he is a level three risk, defendantcontends that Supreme Court failed to set forth its findings of fact and conclusions of law, asrequired by Correction Law § 168-n (3). Although defendant is correct that the court failedto do so, we nevertheless conclude that the record before us is sufficient to enable us to make ourown findings of fact and conclusions of law, thus rendering remittal unnecessary (see People v Pardo, 50 AD3d 992[2008], lv denied 11 NY3d 703 [2008]; People v Banks, 48 AD3d 656 [2008], lv denied 10 NY3d709 [2008]).
Defendant further contends that the People failed to meet their burden of establishing boththat he has a history of drug or alcohol abuse and that he failed to accept responsibility, tosupport that risk level. Defendant does not contest the court's determination with respect to anyof the other risk factors and we therefore do not address them. Based on our review of theevidence at the SORA hearing, we conclude that the People established both of the disputed riskfactors by the requisite clear and convincing evidence (see Correction Law §168-n [3]). According to statements made by defendant that are set forth in the presentencereport, defendant began drinking alcohol and smoking marihuana at age 15, and he started usingcocaine several years later. Defendant also admitted that he had used LSD. Those admissionsconstitute clear and convincing evidence that defendant has a history of alcohol or drug abuse,thus justifying the assessment of 25 points with respect to that risk category (see People v Guitard, 57 AD3d751 [2008], lv denied 12 NY3d 704 [2009]). The fact that defendant may haveabstained from the use of alcohol and drugs while incarcerated is "not necessarily predictive ofhis behavior when [he is] no longer under such supervision" (People v Warren, 42 AD3d 593, 594 [2007], lv denied 9NY3d 810 [2007]; see [*2]People v Vangorder, 72 AD3d 1614 [2010]). With respectto defendant's alleged failure to accept responsibility, the case summary establishes that, wheninterviewed by the Board of Examiners of Sex Offenders, defendant stated that he was not surehe committed the crime and that he pleaded guilty "in order to receive a lesser sentence." Thosestatements constitute clear and convincing evidence of defendant's failure to acceptresponsibility, thus justifying the assessment of 10 additional points for that risk factor. Based onthe assessment of the points for the two risk factors challenged by defendant on appeal, alongwith the assessment of 95 points for the remaining risk factors not challenged by defendant onappeal, we conclude that defendant's presumptive classification as a level three risk was proper,and that defendant failed to show by clear and convincing evidence that a downward departurefrom that risk level was warranted (seePeople v Pearsall, 67 AD3d 876 [2009], lv denied 14 NY3d 703 [2010]). Thestatement of defendant that he is physically unable to reoffend was made for the first time in amemorandum of law submitted following the SORA hearing, and defendant offered no evidenceto support that statement in any event.
Finally, as the People correctly concede, the court erred in determining that defendant is apredicate sex offender, and we therefore modify the order accordingly. Present—Smith,J.P., Fahey, Carni, Lindley and Sconiers, JJ.