| People v Crandall |
| 2011 NY Slip Op 08920 [90 AD3d 628] |
| December 6, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Andrew Crandall, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel; Gamaliel Marrero on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Marrus, J.),dated June 26, 2009, which, after a hearing, designated him a level three sex offender, a sexuallyviolent offender, and a predicate sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Correction Law § 168-n (3) requires a court making a risk level determination pursuantto the Sex Offender Registration Act (hereinafter SORA) (see Correction Law art 6-C) to"render an order setting forth its determinations and the findings of fact and conclusions of lawon which the determinations are based." The Supreme Court here failed to adequately set forth itsfindings of fact and conclusions of law in its order. However, since the record is sufficient forthis Court to make its own findings of fact and conclusions of law, remittal is not required (see People v Lashway, 66 AD3d662, 662 [2009]; People vGuitard, 57 AD3d 751, 751 [2008]).
In establishing a defendant's risk level pursuant to SORA, the People bear the burden ofestablishing the facts supporting the determinations sought by clear and convincing evidence(see Correction Law § 168-n [3]; see also Sex Offender Registration Act:Risk Assessment Guidelines and Commentary, at 5 [2006]; People v Hewitt, 73 AD3d 880 [2010]; People v Chambers, 66 AD3d 748,748 [2009]; People v Bright, 63AD3d 1133, 1134 [2009]; People vHardy, 42 AD3d 487 [2007]). In assessing points, evidence may be derived from thedefendant's admissions, the victim's statements, evaluative reports completed by the supervisingprobation officer, parole officer, or corrections counselor, case summaries prepared by the Boardof Examiners of Sex Offenders (hereinafter the Board), or any other reliable source, includingreliable hearsay (see Sex Offender Registration Act: Risk Assessment Guidelines andCommentary, at 5 [2006]; People vMabee, 69 AD3d 820, 820 [2010]; People v Bright, 63 AD3d at 1134; see also People v Mingo, 12 NY3d563 [2009]).
Here, the Supreme Court properly determined that the assessment of 15 points under riskfactor 11 of the risk assessment instrument, based on a history of drug or alcohol abuse, wasestablished by clear and convincing evidence. That the defendant had a history of drug abuse inthe years leading up to the commission of the instant offense was established by clear andconvincing evidence in the form of the defendant's presentence report and the case summarycompleted by the Board. Additionally, it was established by clear and convincing evidence thatthe defendant "was abusing drugs . . . at the time of the offense" (Sex OffenderRegistration Act: Risk Assessment [*2]Guidelines andCommentary, at 15 [2006]; see People vCarpenter, 60 AD3d 833 [2009]; People v Robinson, 55 AD3d 708 [2008]), which, under theGuidelines, will generally justify the assessment of points in this category. Moreover, while thedefendant claims that he has abstained from drug and alcohol abuse during his lengthyincarceration (see e.g. People vAbdullah, 31 AD3d 515, 516 [2006]), the record establishes, by clear and convincingevidence, that the defendant has been disciplined while incarcerated for unauthorized medication.Thus, we conclude that the assessment of 15 points under this risk factor was proper.
The Supreme Court also properly assessed the defendant 10 points under risk factor 13, forexhibiting unsatisfactory conduct while incarcerated. The record established, by clear andconvincing evidence, that the defendant received at least five tier II and five tier III disciplinaryviolations between 2003 and 2008. Additionally, his conduct while incarcerated resulted in aseparate criminal conviction of attempted promoting prison contraband in the first degree(see Penal Law §§ 110.00, 205.25). The Board's case summary stated thatthe defendant's "custodial adjustment is extremely poor and includes him serving over 2,000 daysin a Special Housing Unit . . . His custodial record reflects a continuation of violentconduct and aggressive acts and a general inability to self-regulate his behaviors." Accordingly,we conclude that the assessment of 10 points for unsatisfactory conduct while incarcerated wassupported by clear and convincing evidence.
Thus, we conclude that the Supreme Court properly designated the defendant a level threesex offender.
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, without merit. Dillon, J.P., Angiolillo, Florio and Dickerson, JJ., concur.