| People v Fryer |
| 2012 NY Slip Op 08499 [101 AD3d 835] |
| December 12, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Walter Dwight Fryer, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Sarah S. Rabinowitz of counsel; JordanHoch on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Nassau County (St. George,J.), dated January 14, 2011, which, after a hearing, designated him a level three sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
Only the defendant's contention that he was improperly assessed 15 points under risk factor11 for a history of drug and alcohol abuse on the ground that his more recent history was one ofprolonged abstinence is preserved for appellate review (see People v Kyle, 64 AD3d 1177 [2009]; Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary at 15 [2006]). The defendant'sremaining contentions regarding this risk factor are unpreserved for appellate review since hefailed to raise those grounds before the Supreme Court. In any event, the defendant's contentionsare without merit.
The Supreme Court properly assessed 15 points under risk factor 14 for the defendant'srelease into the community without supervision (see People v Orengo, 40 AD3d 609, 610 [2007]).
Correction Law § 168-n (3) requires a court making a risk level determination pursuantto the Sex Offender Registration Act (hereinafter SORA) to "render an order setting forth itsdeterminations and the findings of fact and conclusions of law on which the determinations arebased." Here, the Supreme Court failed to adequately set forth findings of fact and conclusions oflaw to support its denial of the defendant's request for a downward departure from hispresumptive designation as a level three sex offender. However, remittal to the Supreme Court isnot required, since the record is sufficient for this Court to make its own findings of fact andconclusions of law (see People vWatson, 95 AD3d 978 [2012]).
A downward departure from a sex offender's presumptive risk level generally is onlywarranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwiseadequately taken into account by the SORA Guidelines (see Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary at 4 [2006]; People v Fernandez, 91AD3d [*2]737 [2012]). A defendant seeking a downwarddeparture has the initial burden of (1) identifying, as a matter of law, an appropriate mitigatingfactor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to thecommunity and is of a kind, or to a degree, that is otherwise not adequately taken into account bythe SORA Guidelines; and (2) establishing the facts in support of its existence by apreponderance of the evidence (see People v Watson, 95 AD3d at 979). A court maychoose to downwardly depart from the risk assessment "in an appropriate case and in thoseinstances where (i) the victim's lack of consent is due only to inability to consent by virtue of ageand (ii) scoring 25 points [for sexual contact with the victim, risk factor 2] results in anover-assessment of the offender's risk to public safety" (Sex Offender Registration Act: RiskAssessment Guidelines and Commentary at 9 [2006]). Here, although there was no evidence offorcible compulsion, a downward departure is not warranted given the age disparity between the26-year-old defendant and the 13-year-old complainant (see People v Wyatt, 89 AD3d 112, 130 [2011]; People v Modica, 80 AD3d 590,592 [2011]; cf. People v Goossens,75 AD3d 1171 [2010]; People vBrewer, 63 AD3d 1604 [2009]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, without merit. Dillon, J.P., Chambers, Sgroi and Miller, JJ., concur.