| People v Boykin |
| 2013 NY Slip Op 00468 [102 AD3d 937] |
| January 30, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Robert J. Boykin, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Jason R. Richards and AnthonyR. Perri of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Nassau County (Kase,J.), dated December 15, 2006, which, after a hearing, designated him a level two 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 determinationpursuant to the Sex Offender Registration Act (see Correction Law art 6-C;hereinafter SORA) to "render an order setting forth its determinations and the findings offact and conclusions of law on which the determinations are based" (Correction Law§ 168-n [3]). Here, the SORA court failed to adequately set forth its findings offact and conclusions of law in its order. However, since the record is sufficient for thisCourt to make its own findings of fact and conclusions of law, remittal is not required(see People v Finizio, 100AD3d 977 [2012]; People vHarris, 93 AD3d 704, 704 [2012]; People v Guitard, 57 AD3d 751, 751 [2008]; People v Banks, 48 AD3d656, 656 [2008]).
Contrary to the defendant's contention, he was properly assessed 15 points under riskfactor 11 (history of drug or alcohol abuse), in light of the information contained in thepresentence investigation report (see People v Palmer, 91 AD3d 618 [2012]; People v Wright, 37 AD3d797, 798 [2007]). Those 15 points, together with the points assessed against thedefendant that were unchallenged, were sufficient to classify the defendant as a level twosex offender. Although the People concede that the assessment of points under riskfactors 1 (use of violence) and 12 (acceptance of responsibility) was not appropriate,excluding those points from the total points assessed against the defendant does not alterhis presumptive risk level.
In addition, the SORA court properly denied the defendant's application for adownward departure from his presumptive risk level assessment, since he failed to satisfythe threshold condition of identifying an appropriate mitigating factor which is of a kind,or to a degree, that is otherwise not adequately taken into account by the SORAGuidelines (see People vReynolds, 90 AD3d 630, 631 [2011]; People v Wyatt, 89 AD3d 112, 128 [2011]; Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary at 4 [2006]).[*2]
The defendant's remaining contention isunpreserved for appellate review and, in any event, without merit. Rivera, J.P.,Leventhal, Hall and Roman, JJ., concur.