| People v Finizio |
| 2012 NY Slip Op 08108 [100 AD3d 977] |
| November 28, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Matthew Finizio, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart andMichael Shollar of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County (Meyer, J.),dated May 6, 2010, 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.
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 failed toset forth adequately 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 vHarris, 93 AD3d 704, 704 [2012]; People v Crandall, 90 AD3d 628, 629 [2011]; People v Lashway, 66 AD3d 662,662 [2009]; People v Guitard, 57AD3d 751, 751 [2008]).
In establishing a defendant's risk level pursuant to SORA, the People bear the burden ofestablishing, by clear and convincing evidence, the facts supporting the determinations sought(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, 90 AD3d at 629; see Sex Offender Registration Act:Risk Assessment Guidelines and Commentary at 5 [2006]; People v Mabee, 69 AD3d 820, 820 [2010]; see also People v Mingo, 12 NY3d563 [2009]).
The only points challenged by the defendant before the Supreme Court, and the only pointshe challenges here, are the 15 points assessed under risk factor 11, based on a history of drug oralcohol abuse. Contrary to the defendant's contentions, the People established the factssupporting the assessment of these points by clear and convincing evidence. According to thepre-[*2]sentence report, the defendant reported use of controlledsubstances and/or alcohol, although he claimed at that time that he had been drug-free for morethan five years. He first used marijuana or hashish before the age of 16. According to the casesummary, the defendant admitted to using marijuana. When the defendant was processed by whatis now the Department of Corrections and Community Supervision, he scored in the "StrongSuggestion" range on the Michigan Alcohol Screening Test, and in the "Substance AbuseIndicated" range on the Simple Screening Instrument. The defendant was referred to a substanceabuse treatment program. He also completed a sex offender program designed for chemicallydependent inmates. In addition, the case summary establishes that the defendant has beenconvicted of, among other things, attempted criminal sale of a controlled substance in the thirddegree (see Penal Law §§ 110.00, 110.05, 220.39), and criminal possessionof a controlled substance in the fifth degree (see Penal Law § 220.06). Based onthe foregoing, the People established, by clear and convincing evidence, that the assessment of15 points on the Risk Assessment Instrument for a history of drug or alcohol abuse wasappropriate.
Accordingly, based on the points assessed, the Supreme Court properly designated thedefendant a level two sex offender. Mastro, J.P., Skelos, Florio and Dickerson, JJ., concur.