| People v Gilbert |
| 2010 NY Slip Op 08257 [78 AD3d 1584] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Nathaniel Gilbert,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael H. Kooshoian of counsel), forrespondent.
Appeal from an order of the Supreme Court, Erie County (John L. Michalski, A.J.), enteredFebruary 27, 2009. The order determined that defendant is a level three risk pursuant to the SexOffender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level three risk pursuant tothe Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.). We agreewith defendant that Supreme Court failed to comply with Correction Law § 168-n (3), pursuantto which it was required to set forth the findings of fact and conclusions of law upon which it based itsdetermination. "[T]he court merely recited in conclusory fashion that it reviewed all the relevantinformation presented by the parties and accepted the findings contained in the risk assessmentinstrument [RAI] and the case summary, and that recitation was insufficient to fulfill the statutorymandate" (People v Hubel, 70 AD3d1492, 1493-1494 [2010]). "[W]e nevertheless conclude that the record before us is sufficient toenable us to make our own findings of fact and conclusions of law, thus rendering remittal unnecessary"(People v Urbanski, 74 AD3d1882, 1883 [2010], lv denied 15 NY3d 707 [2010]).
Based on the evidence in the record before us, including the case summary and the RAI, we makethe following findings of fact. With respect to the underlying offense, we find that defendant followed thevictim, with whom he was acquainted, into her apartment. He assaulted her while she held herseven-month-old child in her arms and then raped her while threatening her and her children with injuryand death. He pleaded guilty to attempted rape in the first degree (Penal Law §§ 110.00,130.35 [1]), and was sentenced to a term of imprisonment. In addition, defendant engaged in acts ofsexual intercourse with a 15-year-old girl when he was 20 years old. Based on those acts, he pleadedguilty to sexual abuse in the first degree (§ 130.65 [1]), and he was sentenced to probation. Wefurther find that defendant was unsuccessfully discharged from his term of probation based on, inter alia,his continued use of marijuana and cocaine and his failure to attend substance abuse counseling.[*2]
Defendant does not challenge the assessment of 90 pointsagainst him based upon the factors set forth in the RAI. In any event, we conclude that the Peopleestablished by clear and convincing evidence that defendant should be assessed 10 points for usingforcible compulsion under risk factor 1, 25 points for engaging in sexual intercourse, oral or anal sexualintercourse or aggravated sexual abuse under risk factor 2, 10 points for being 20 years old or less atthe time of the first act of sexual misconduct under risk factor 8, 30 points for having a prior violentfelony under risk factor 9, and 15 points for having a history of drug or alcohol abuse pursuant to riskfactor 11. Contrary to defendant's contention, we also conclude that "[t]he People established, by clearand convincing evidence[, i.e., the certificate of conviction], that the defendant was previously convictedof a felony sex crime . . . and was presumptively a level three sex offender by applicationof automatic override number one, which deals with a prior felony conviction for a sex crime" (People v King, 74 AD3d 1162, 1163[2010]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at3-4, 19 [2006]; People v McClelland,38 AD3d 1274 [2007]). Furthermore, the case summary also established defendant's prior felonyconviction for a sex crime. "[E]vidence included in the case summary may provide clear and convincingevidence in determining a defendant's risk assessment level where[, as here, the] defendant did notdispute its contents insofar as relevant" (People v Wasley, 73 AD3d 1400, 1401 [2010]).
Contrary to the further contention of defendant, his prior conviction "may be used as both anoverride factor and a basis upon which to add 30 points for risk factor 9 on the [RAI]" (People vBarrier, 58 AD3d 1086, 1087 [2009], lv denied 12 NY3d 707 [2009]). Defendant failedto preserve for our review his contention that he was entitled to a downward departure from hispresumptive risk level (see People vRatcliff, 53 AD3d 1110 [2008], lv denied 11 NY3d 708 [2008]; People v Regan, 46 AD3d 1434[2007]). In any event, we conclude that defendant's multiple convictions of sexual crimes constitute"compelling evidence that [defendant] poses a serious risk to public safety" (Risk AssessmentGuidelines and Commentary, at 4), and thus a downward departure from the presumptive risk level isnot warranted. We have considered defendant's remaining contention and conclude that it is withoutmerit. Present—Scudder, P.J., Smith, Carni, Lindley and Green, JJ.