| People v Grubbs |
| 2013 NY Slip Op 04316 [107 AD3d 771] |
| June 12, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Willie Grubbs, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel; G. Aaron Leibowitz on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County(Sullivan, J.), entered October 24, 2011, which, after a hearing, designated him a levelthree sex offender 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 findingsof fact and conclusions of law on which the determinations are based" (Correction Law§ 168-n [3]). Here, the Supreme 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 Lacewell, 103AD3d 784 [2013], lv denied 21 NY3d 856 [2013]; People v Finizio, 100 AD3d977, 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 Lacewell, 103 AD3d at 785, quotingPeople v Finizio, 100 AD3d at 978; see Correction Law § 168-n[3]; see also Sex Offender Registration Act: Risk Assessment Guidelines andCommentary 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 Lacewell, 103 AD3d at 785 [internal quotation marks omitted]; see People v Mingo, 12 NY3d563 [2009]; People v Finizio, 100 AD3d at 978; People v Crandall,90 AD3d at 629; see also Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary at 5 [2006]).
Here, the only points challenged by the defendant before the Supreme Court were the[*2]30 points assessed under risk factor one based on theallegation that the defendant had been armed with a dangerous instrument at the timewhen he committed one of the underlying offenses. The defendant succeeded in thischallenge, and the Supreme Court only assessed the defendant, who pleaded guilty torape in the first degree (see Penal Law § 130.35 [1]), 10 points under riskfactor one for the use of forcible compulsion. The assessment of these 10 points, as wellas 135 points overall, was supported by clear and convincing evidence in the record.Accordingly, the Supreme Court properly assessed the defendant 135 total points,rendering him a presumptive level three sex offender.
The Supreme Court providently exercised its discretion in denying the defendant'srequest for a downward departure from his presumptive designation as a risk level threesex offender, as the record does not reflect the existence of special circumstanceswarranting a downward departure (see generally People v Wyatt, 89 AD3d 112, 118-122[2011]). Under the circumstances of this case, the defendant's age, his physical condition,his participation in sex offender treatment while incarcerated, and his stable employmenthistory prior to incarceration, considered individually and collectively, did not warrant adownward departure from the defendant's presumptive risk level. Mastro, J.P., Dillon,Dickerson and Austin, JJ., concur.