| People v Thompson |
| 2012 NY Slip Op 03616 [95 AD3d 977] |
| May 8, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v William Thompson, Appellant. |
—[*1]
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley, Yael V. Levy, andJessica L. Cepriano of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Nassau County (Calabrese, J.),dated September 15, 2010, which, after a hearing, designated him a level two sex offenderpursuant 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 (Correction Law art 6-C [hereinafter SORA]) to "render anorder setting forth its determinations and the findings of fact and conclusions of law on which thedeterminations are based" (Correction Law § 168-n [3]). Here, the Supreme Court failedadequately to set forth its findings of fact and conclusions of law in its order. However, since therecord is sufficient for this Court to make its own findings of fact and conclusions of law,remittal is not required (see People vLashway, 66 AD3d 662, 662 [2009]; People v Guitard, 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 . . . or any other reliable source, including reliablehearsay" (People v Crandall, 90AD3d 628, 629 [2011]; see Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, at 5 [2006]; People v Mabee, 69 AD3d 820, 820 [2010]; see also People v Mingo, 12 NY3d563 [2009]).
Here, as the defendant correctly contends, the evidence offered by the People in support oftheir contention that the defendant should be assessed 15 points under risk factor 11, for drug oralcohol abuse, was insufficient to satisfy the People's burden of proving, by clear and [*2]convincing evidence, that the defendant had "a substance abusehistory or was abusing drugs and or alcohol at the time of the offense" (Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary, at 15 [2006]; see People vMabee, 69 AD3d at 820). Accordingly, the Supreme Court should not have assessed thedefendant 15 points under risk factor 11. However, deducting these 15 points from the totalpoints assessed against the defendant does not alter his presumptive risk level.
Contrary to the defendant's contention, the Supreme Court properly assessed 10 pointsagainst him under risk factor 12, for failure to accept responsibility for his conduct. The evidencebefore the Supreme Court, including the defendant's statements to the Nassau County ProbationDepartment and the contents of the presentence report, demonstrated by clear and convincingevidence that the defendant had not accepted responsibility for his conduct (see People v Deturris, 90 AD3d727, 727 [2011]; People vChandler, 80 AD3d 741, 742 [2011]).
Accordingly, the Supreme Court properly designated the defendant a level two sex offender.Angiolillo, J.P., Dickerson, Hall and Cohen, JJ., concur.