| People v Young |
| 2013 NY Slip Op 05421 [108 AD3d 1232] |
| July 19, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vRussell Young, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from an order of the Onondaga County Court (Anthony F. Aloi, J.), enteredApril 16, 2012. The order determined that defendant is a level two risk pursuant to theSex Offender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Defendant appeals from an order determining that he is a level tworisk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168et seq.). Defendant failed to preserve for our review his contention that he wasineligible to be designated a sexually violent offender (see People v Windham, 10NY3d 801, 802 [2008]; People v Cullen, 79 AD3d 1677, 1677-1678 [2010], lvdenied 16 NY3d 709 [2011]). Defendant did not present an adequate record topermit review of his contention that he was deprived of due process as a result of beingdenied access to documents relevant to his conviction of child molestation in the firstdegree in Washington State, on which County Court relied in its written decision andorder determining defendant to be a level two risk (see Palermo v Taccone, 79 AD3d 1616, 1620 [2010]; de Vries v Metropolitan Tr.Auth., 11 AD3d 312, 312-313 [2004]). In any event, we note that the court alsorelied on the case summary in determining defendant to be a level two risk. "The casesummary may constitute clear and convincing evidence of the facts alleged therein and,where, as here, the defendant does not dispute the facts contained in the case summary,the case summary alone is sufficient to support the court's determination" (People v Guzman, 96 AD3d1441, 1441-1442 [2012], lv denied 19 NY3d 812 [2012]). Defendant'sfurther contention that he was denied effective assistance of counsel lacks merit.Although "[a] sex offender facing risk level classification under SORA has a right to. . . effective assistance of counsel" (People v Willingham, 101 AD3d 979, 979 [2012]), weconclude that, viewing the evidence, the law and the circumstances of this case in totalityand at the time of representation, defendant received effective assistance of counsel(see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant contends that reversal is required because the court failed to set forth itsfindings of fact and conclusions of law with respect to its determination that defendant isa level [*2]two risk, as required by Correction Law§ 168-n (3). We reject that contention; rather, we conclude that the court's findingsof fact rendered in conjunction with its oral decision " 'are clear, supported by the recordand sufficiently detailed to permit intelligent appellate review' " (People v Smith, 75 AD3d1112, 1112 [2010]). Moreover, even if the court failed to set forth its findings of factand conclusions of law, remittal is unnecessary where, as here, the record is sufficient toenable us to make our own findings of fact and conclusions of law (see People v Urbanski, 74AD3d 1882, 1883 [2010], lv denied 15 NY3d 707 [2010]). We also rejectdefendant's contention that the court erred in assessing him 20 points under risk factor 4(see People v Di John, 48AD3d 1302, 1303 [2008]; see generally People v Pettigrew, 14 NY3d 406, 408-409[2010]). Here, the case summary indicates that defendant digitally penetrated the victimon three separate occasions between March 1992 and May 1992 (see SexOffender Registration Act: Risk Assessment Guidelines and Commentary at 10 [2006];see also Di John, 48 AD3d at 1303). Defendant did not preserve for our reviewhis contention that the court erred in assessing 15 points under risk factor 12 (seeCullen, 79 AD3d at 1677) and, in any event, that contention lacks merit inasmuch asthe case summary indicates that defendant denied molesting his victim and declined sexoffender treatment (seegenerally People v Hurlburt-Anderson, 46 AD3d 1437, 1437 [2007]).Defendant's further contention that the court erred in assessing 10 points under risk factor13 is likewise without merit inasmuch as the case summary indicates that defendant wascharged with a probation violation five days after his release from incarceration and wassubsequently convicted of additional criminal activity (cf. People v Neuer, 86 AD3d926, 927 [2011], lv denied 17 NY3d 716 [2011]). Finally, we conclude that"defendant failed to present clear and convincing evidence of special circumstancesjustifying a downward departure" of his risk level (People v McDaniel, 27 AD3d 1158, 1159 [2006], lvdenied 7 NY3d 703 [2006]). Present—Smith, J.P., Fahey, Peradotto, Carniand Lindley, JJ.