| People v Long |
| 2011 NY Slip Op 08402 [89 AD3d 1513] |
| November 18, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Cornell Long,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from an order of the Supreme Court, Erie County (John L. Michalski, A.J.), enteredSeptember 21, 2009. The appeal was held by this Court by order entered February 18, 2011, decisionwas reserved and the matter was remitted to Supreme Court, Erie County, for further proceedings (81AD3d 1432 [2011]). The proceedings were held and completed.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: We previously held this case, reserved decision and remitted the matter to SupremeCourt for compliance with Correction Law § 168-n (3), based on the court's failure "to set forththe findings of fact and conclusions of law upon which it based its determination" (People vLong, 81 AD3d 1432, 1433 [2011]). We agree with defendant that, upon remittal, the court failedto set forth its findings of fact and conclusions of law in an adequate manner, i.e., the court failed to notethe "evidence upon which" its determination was based (People v Smith, 11 NY3d 797, 798 [2008]), and the court was requiredto provide more than "a generic listing of factors" (People v Miranda, 24 AD3d 909, 911 [2005]). Nevertheless, weconclude that "the record before us is sufficient to enable us to make our own findings of fact andconclusions of law, thus rendering [further] remittal unnecessary" (People v Urbanski, 74 AD3d 1882, 1883 [2010], lv denied 15NY3d 707 [2010]; see People v Pardo,50 AD3d 992 [2008], lv denied 11 NY3d 703 [2008]).
Upon exercising our authority to make findings of fact and conclusions of law, we conclude that thecourt properly determined that defendant is a level two risk under the Sex Offender Registration Act(Correction Law § 168 et seq.). In the prior appeal, we determined that the courtproperly assessed 15 points against defendant under the risk factor for number and nature of priorcrimes (Long, 81 AD3d at 1433), and we now conclude that, contrary to defendant'scontention, the People met their burden of proving that 15 points should be assessed against him underthe risk factor for drug or alcohol abuse. Because "[a]n assessment of 15 points is warranted under thatrisk factor where[, inter alia,] 'an offender . . . was abusing drugs and or alcohol at thetime of the offense' " (People v McClam,63 AD3d 1588, 1589 [2009], lv denied 13 NY3d 704 [2009], quoting Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary, at 15 [2006]), we conclude thatdefendant's admission that he was drinking alcohol [*2]during the1½-hour period immediately preceding his offense provides a sufficient basis upon which toassess the points (see People vRobinson, 55 AD3d 708 [2008], lv denied 11 NY3d 713 [2008]).
Inasmuch as defendant "does not contest the court's determination with respect to any of the otherrisk factors[,] we therefore do not address them" (Urbanski, 74 AD3d at 1883). Thus, weconclude that the remainder of the court's determination is valid, and that the court properly determineddefendant to be a level two risk. Present—Scudder, P.J., Centra, Carni, Sconiers and Gorski,JJ.