| People v Suber |
| 2012 NY Slip Op 00194 [91 AD3d 619] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Suber, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel; Joseph N. Schneiderman on the brief), for respondent.
Appeal by the defendant, as limited by his brief, from so much of an order of the SupremeCourt, Kings County (Garnett, J.), dated February 5, 2009, as, after a hearing, designated him alevel three sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed insofar as appealed from, 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." Here, the Supreme Court failed to adequately set forthits findings 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]).
The defendant contends that the Supreme Court improperly granted the People's application,upon the recommendation of the Board of Examiners of Sex Offenders (hereinafter the Board),for an upward departure to risk level three. "A court may exercise its discretion and departupward from the presumptive risk level where 'it concludes that there exists an aggravating. . . factor of a kind, or to a degree, that is otherwise not adequately taken intoaccount by the guidelines' " (People vMcDonnell, 89 AD3d 815 [2011], quoting Sex Offender Registration Act: RiskAssessment Guidelines and Commentary, at 4 [2006]). "There must be clear and convincingevidence of the existence of the aggravating factor to warrant the court's exercise of discretion"(People v McDonnell, 89 AD3d at 816; see Correction Law § 168-n [3]; People v Wyatt, 89 AD3d 112[2011]). Here, in departing from the presumptive risk level, the Supreme Court properlyconsidered the evidence of the brutality and violence of the underlying crimes committed by thedefendant in Ohio, as set forth in the case summary completed by the Board. In addition to rapingthe victim, the defendant, during the attack, struck the victim on the head multiple times,inflicted bruises and abrasions on her and, most significantly, choked her to the point ofunconsciousness twice, resulting in his conviction of attempted murder as well as rape. Contraryto the defendant's [*2]contention, and notwithstanding the factthat the defendant was assessed 15 points under risk factor one for inflicting physical injury onthe victim, the People demonstrated by clear and convincing evidence the existence of anaggravating factor that was not adequately taken into account by the guidelines and the riskassessment instrument (see Sex Offender Registration Act: Risk Assessment Guidelinesand Commentary, at 14 [2006]; People vMiller, 48 AD3d 774, 775 [2008]; People v Joslyn, 27 AD3d 1033, 1034-1035 [2006]; see also People v Neal, 73 AD3d1145, 1145-1146 [2010]). Dillon, J.P., Dickerson, Eng and Leventhal, JJ., concur.