| People v Johnson |
| 2013 NY Slip Op 05992 [109 AD3d 972] |
| September 25, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Prince Johnson, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart,Anne Grady, and Michael Shollar of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Richmond County(Rienzi, J.), dated October 28, 2011, which, after a hearing, designated him a level twosex 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 (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 Eaton, 105 AD3d722, 722-723 [2013]; People v Finizio, 100 AD3d 977 [2012]).
The People bear the burden of establishing, by clear and convincing evidence, thefacts supporting the assessment of points under the Guidelines issued by the Board ofExaminers of Sex Offenders under SORA (see Correction Law art 6-C; SexOffender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; People v Harris, 100 AD3d727, 727 [2012]; People vThompson, 95 AD3d 977, 977 [2012]). Here, the Supreme Court properlydesignated the defendant a level two sex offender. Contrary to the defendant'scontention, clear and convincing evidence established that he had a history of drug abuse(see People v Palmer, 20NY3d 373, 377-378 [2013]). Thus, the court appropriately assessed him 15 pointsunder risk factor 11 (Drug or Alcohol Abuse). Including those 15 points, the totalassessment of 80 points presumptively classified the defendant as a level two sexoffender.
To the extent that the defendant established facts that might warrant a downwarddeparture from his presumptive risk level designation (see People v Wyatt, 89 AD3d112, 124 [2011]), upon examining all of the circumstances relevant to thedefendant's risk of reoffense and danger to the community, the Supreme Courtprovidently exercised its discretion in denying the defendant's application for adownward departure (see People v Eaton, 105 AD3d at 723). Mastro, J.P.,Skelos, Balkin and Leventhal, JJ., concur.