| People v Melzer |
| 2011 NY Slip Op 08572 [89 AD3d 1000] |
| November 22, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AdamMelzer, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley, Joanna Hershey, andLaurie K. Gibbons of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Nassau County (St. George, J.),dated February 18, 2011, which, after a hearing, designated him a level two sex offender pursuant toCorrection Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The defendant is an individual who was a registered sex offender in New Jersey. Upon taking uppermanent residence in New York in December 2009, he registered in New York as a sex offenderwith the Division of Criminal Justice Services, as required by Correction Law § 168-k. In June2010, the New York Board of Examiners of Sex Offenders (hereinafter the Board of Examiners)reviewed the defendant's conviction in New Jersey and recommended an upward departure from a risklevel one to risk level two. In November 2010, the defendant moved back to New Jersey prior to hisrisk level assessment hearing in New York, which commenced in January 2011 and concluded inFebruary 2011.
Contrary to the defendant's contention, the Supreme Court was statutorily required to hold a risklevel assessment hearing after receiving the recommendation of the Board of Examiners regarding thedefendant's level of notification (see Correction Law § 168-n [1], [2]; Matter of Churuti v Devane, 29 AD3d1139, 1141 [2006]; People vPeters, 27 AD3d 784 [2006]). The Supreme Court did not err in conducting the risk levelassessment hearing after the defendant had moved back to New Jersey, as the dual purposes of theSex Offender Registration Act (see Correction Law art 6-C; hereinafter SORA), which are tomonitor sex offenders' whereabouts and to aid law enforcement in prosecuting recidivist offenders,would be frustrated if they were to cease when a registered sex offender moves out of the state (see Matter of Doe v O'Donnell, 86 AD3d238, 241-242 [2011], lv denied 17 NY3d 713 [2011]).
The defendant also contends that the Supreme Court erred in upwardly departing from thepresumptive risk level one to risk level two. The defendant correctly states that the Supreme Courtfailed to set forth adequate findings of fact and conclusions of law as mandated by Correction Law§ 168-n (3) (see People v Vega,79 AD3d 718 [2010]). However, remittal is not required, as the record [*2]is sufficient for this Court to make its own findings of fact and conclusionsof law (see People v Rivera, 73 AD3d881 [2010]). In support of their application for an upward departure, the People presentedaggravating factors, including the defendant's misuse of his position of trust in committing the underlyingoffense (see People v Mantilla, 70 AD3d477, 478 [2010]), and that the defendant manipulated and deceived his victims (see People v Barad, 50 AD3d 988[2008]; People v Scott, 29 AD3d1025, 1026-1027 [2006]). These factors tend to establish a higher likelihood of reoffense ordanger to the community and were otherwise not adequately taken into account by the SORAGuidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary[2006]). In addition, the People established the facts in support of these aggravating factors by clearand convincing evidence. Thus, the Supreme Court providently exercised its discretion in upwardlydeparting from the presumptive risk level one to risk level two (see Correction Law §168-n [3]; People v Wyatt, 89 AD3d 112 [2011]; see generally People v Liguori, 48 AD3d 773 [2008]).
The defendant's remaining contention is unpreserved for appellate review. Florio, J.P., Hall, Austinand Cohen, JJ., concur.