| People v Harris |
| 2012 NY Slip Op 07649 [100 AD3d 727] |
| November 14, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v SteveHarris, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Del Giudice,J.), dated October 15, 2010, which, after a hearing, inter alia, designated him a level three sexoffender 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 (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]; see People v Leopold, 13 NY3d923, 924 [2010]). Here, the Supreme Court failed adequately to set forth its findings of factand conclusions of law in its order. However, since the record is sufficient for this Court to makeits own findings of fact and conclusions of law, remittal is not required (see People v Thompson, 95 AD3d977, 977 [2012], lv denied 19 NY3d 811 [2012]; People v Harris, 93 AD3d 704, 704 [2012]; People v Crandall, 90 AD3d 628,629 [2011]; People v Lashway, 66AD3d 662, 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"(People v Thompson, 95 AD3d at 977; see Correction Law § 168-n [3];see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at5 [2006]; People v Hewitt, 73 AD3d880 [2010]; People vChambers, 66 AD3d 748, 748 [2009]; People v Bright, 63 AD3d 1133, 1134 [2009]; People v Hardy, 42 AD3d 487,487 [2007]). " 'In assessing points, evidence may be derived from the defendant's admissions, thevictim's statements, evaluative reports completed by the supervising probation officer, paroleofficer, or corrections counselor, case summaries prepared by the Board of Examiners of SexOffenders . . . or any other reliable source, including reliable hearsay' " (Peoplev Thompson, 95 AD3d at 977-978, quoting People v Crandall, 90 AD3d 628, 629 [2011]; see SexOffender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; People v Mabee, 69 AD3d 820,820 [2010]; see also People vMingo, 12 NY3d 563 [2009]).
Here, as the defendant correctly contends, the evidence in support of the People's [*2]contention that the defendant should be assessed 20 points underrisk factor 3, for two victims being involved, was not sufficient to satisfy the People's burden ofproving the required facts by clear and convincing evidence. Similarly, the assessment of 20points under risk factor 6, "[o]ther victim characteristics," was also not supported by clear andconvincing evidence.
Conversely, the remaining points assessed by the Supreme Court were supported by clear andconvincing evidence. Contrary to the defendant's contention, the Supreme Court properlyassessed him 15 points under risk factor 12 for failure to accept responsibility. In addition to thedefendant's initial denials of any involvement in the crimes, the People established by clear andconvincing evidence that he was expelled from a treatment program while incarcerated. Thedefendant did not challenge the points assessed under risk factors 1 (30 points), 2 (25 points), 7(20 points), 9 (30 points), and 14 (15 points). With a total of 135 points, the defendant wasproperly designated a level three sex offender.
Contrary to the defendant's contention, his due process rights were not violated at the SORAhearing.
The parties' remaining contentions are without merit. Florio, J.P., Dickerson, Sgroi andMiller, JJ., concur.