| People v Vasquez |
| 2011 NY Slip Op 08132 [89 AD3d 816] |
| November 9, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Absalon Vasquez, Appellant. |
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Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and JeanetteLifschitz of counsel; Andrew Dykens on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Aloise, J.),dated February 7, 2011, 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.
Contrary to the defendant's contention, the Supreme Court properly assessed 30 points underrisk factor 9 based upon his prior youthful offender adjudication for burglary in the seconddegree (see Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 13 [2006]; People vStacconi, 81 AD3d 1046 [2011]; People v Thomas, 59 AD3d 783, 784 [2009]; People v Baker, 57 AD3d 1472,1473 [2008]; People vSwackhammer, 25 AD3d 892 [2006]). To the extent that the defendant maintains thatthe Supreme Court failed to set forth the findings of fact and conclusions of law upon which itbased its determination to assess those points, remittitur is not required because the record issufficient for this Court to make its own findings of fact and conclusions of law (see People v Lyons, 72 AD3d 776[2010]; People v Hill, 50 AD3d990, 991 [2008]).
Moreover, the defendant's argument with regard to risk factor 1 is without merit. Thedefendant's infliction of physical injury upon the victim was "previously proven at trial"(Correction Law § 168-n [3]; People v Vasquez, 297 AD2d 297, 298 [2002]).Thus, that fact "shall be deemed established by clear and convincing evidence and shall not berelitigated" (Correction Law § 168-n [3]; see People v Davenport, 38 AD3d 634, 635 [2007]).[*2]
Finally, under the circumstances of this case, the SupremeCourt properly determined that an upward departure to risk level three was warranted based uponclear and convincing evidence of the existence of aggravating factors not accounted for in therisk assessment instrument (see Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 4 [2006]; People v Wyatt, 89 AD3d 112 [2d Dept 2011];People v Freeman, 85 AD3d1335, 1336 [2011]; People vTwyman, 59 AD3d 415, 416 [2009]; People v Heichel, 20 AD3d 934, 935-936 [2005]). Angiolillo, J.P.,Florio, Leventhal and Cohen, JJ., concur.