| People v Lacewell |
| 2013 NY Slip Op 01071 [103 AD3d 784] |
| February 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Rahnick Lacewell, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart ofcounsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County(Rienzi, J.), dated July 25, 2008, which, after a hearing, 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 determinationpursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafterSORA) to "render an order setting forth its determinations and the findings of fact andconclusions of law on which the determinations are based" (Correction Law §168-n [3]). Here, the Supreme Court failed to adequately set forth its findings of fact andconclusions of law in its order. However, since the record is sufficient for this Court tomake its own findings of fact and conclusions of law, remittal is not required (see People v Finizio, 100AD3d 977 [2012]; People vThompson, 95 AD3d 977, 977 [2012]; People v Harris, 93 AD3d 704, 704 [2012]; People v Crandall, 90 AD3d628, 629 [2011]; 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 theburden of establishing, by clear and convincing evidence, the facts supporting thedeterminations sought" (People v Finizio, 100 AD3d at 978; seeCorrection Law § 168-n [3]; see also Sex Offender Registration Act: RiskAssessment Guidelines and Commentary at 5 [2006]; People v Hewitt, 73 AD3d 880 [2010]; People v Chambers, 66 AD3d748, 748 [2009]; People vBright, 63 AD3d 1133, 1134 [2009]; People v Hardy, 42 AD3d 487 [2007]). " 'In assessingpoints, evidence may be derived from the defendant's admissions, the victim's statements,evaluative reports completed by the supervising probation officer, parole officer, orcorrections counselor, case summaries prepared by the Board of Examiners of SexOffenders . . . or any other reliable source, including reliable hearsay' "(People v Finizio, 100 AD3d at 978, quoting People v Crandall, 90AD3d at 629; see Sex Offender Registration Act: Risk Assessment Guidelinesand Commentary at 5 [2006]; People v Mabee, 69 AD3d 820, 820 [2010]; see also People v Mingo, 12NY3d 563 [2009]).
The only points challenged by the defendant before the Supreme Court were 10points requested by the People under risk factor one for the use of forcible compulsion,which points were not assessed by the Board of Examiners of Sex Offenders (hereinafterthe Board) on its risk [*2]assessment instrument(hereinafter RAI), and 30 points requested by the People under risk factor three, based onthe number of victims, rather than the 20 points assessed by the Board under that riskfactor. The assessment of these points was supported by clear and convincing evidence inthe record in the form of the grand jury minutes, the case summary, and the presentencereport. Accordingly, the Supreme Court properly assessed the defendant 140 total points,rendering him a presumptive level three sex offender.
A court has the discretion to depart from the presumptive risk level, based upon thefacts in the record (see People v Harris, 93 AD3d at 705; People v Bowens, 55 AD3d809, 810 [2008]; People vTaylor, 47 AD3d 907, 907 [2008]; People v Burgos, 39 AD3d 520, 520 [2007]; People v Hines, 24 AD3d524, 525 [2005]). A departure from the presumptive risk level is warranted where"there exists an aggravating or mitigating factor of a kind, or to a degree, that is nototherwise adequately taken into account by the guidelines" (Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary at 4 [2006]; see People vHarris, 93 AD3d at 705; People v Bowens, 55 AD3d at 810; People vTaylor, 47 AD3d at 908; People v Burgos, 39 AD3d at 520; People vHines, 24 AD3d at 525). "A defendant seeking a downward departure need onlyestablish the existence of an appropriate mitigating factor by a preponderance of theevidence" (People v Harris, 93 AD3d at 705-706; see People v Wyatt, 89 AD3d112, 127-128 [2011]). " 'A sex offender's successful showing by a preponderance ofthe evidence of facts in support of an appropriate mitigating factor does not automaticallyresult in the relief requested, but merely opens the door to the SORA court's exercise ofits sound discretion upon further examination of all relevant circumstances' " (Peoplev Harris, 93 AD3d at 706, quoting People v Wyatt, 89 AD3d at 127).Furthermore, the SORA court is not bound by the Board's recommendation of adownward departure, and is entitled to depart from that recommendation and determinethe defendant's risk level based on the record before it (see People v Herron, 59 AD3d414, 414 [2009]; People vTaylor, 48 AD3d 775, 776 [2008]; People v Walker, 47 AD3d 692, 693-694 [2008]).
The defendant is correct that, in denying his application for a downward departure,the Supreme Court recited the incorrect "clear and convincing evidence" standard ratherthan the applicable "preponderance of the evidence" standard (see People vWyatt, 89 AD3d at 127-128). However, contrary to the defendant's contentions, therecord does not reflect the existence of any mitigating factor warranting a downwarddeparture. Accordingly, the Supreme Court properly denied the defendant's request for adownward departure from his presumptive designation as a risk level three sex offender.
The defendant's remaining contention is without merit. Dillon, J.P., Angiolillo,Dickerson and Hinds-Radix, JJ., concur.