| People v Roache |
| 2013 NY Slip Op 06552 [110 AD3d 776] |
| October 9, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Walter Roache, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Middletown, N.Y. (Elizabeth L. Guinup andRobert H. Middlemiss of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Orange County (DeRosa, J.), dated December 14, 2009, which designated him a level three sex offenderpursuant 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 County 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 Eaton, 105AD3d 722, 722-723 [2013]; People v Finizio, 100 AD3d 977 [2012]).
In establishing a defendant's risk level pursuant to SORA, the People bear the burdenof establishing, by clear and convincing evidence, the facts supporting the determinationssought (see Correction Law § 168-n [3]; see also Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; People vFinizio, 100 AD3d at 978). "[E]vidence may be derived from the defendant'sadmissions, the victim's statements, evaluative reports completed by the supervisingprobation officer, parole officer, or corrections counselor, case summaries prepared bythe Board of Examiners of Sex Offenders . . . or any other reliable source,including reliable hearsay" (People v Crandall, 90 AD3d 628, 629 [2011]; seeSex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5[2006]; see also People vMingo, 12 NY3d 563 [2009]).
Here, the People met their burden of establishing, by clear and convincing evidence,that the court should apply an automatic override addressing the defendant's prior felonyconviction of a sex crime (see Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary at 3-4 [2006]). Therefore, irrespective of the points scoredon the risk assessment instrument, the defendant was presumptively a level three sexoffender (see People vCarter, 85 AD3d 995 [2011]).
Contrary to the defendant's contention, the record demonstrates that he knowinglyand voluntarily waived his right to a SORA hearing (see People v Gliatta, 27 AD3d 441 [2006]; see also People v Dexter, 21AD3d 403, 404 [2005]).[*2]
A sex offender facing risk level classificationunder SORA has a right to the effective assistance of counsel (see People v Willingham, 101AD3d 979, 980 [2012]; People v Bowles, 89 AD3d 171, 173 [2011]). Viewed intotality and as of the time of the representation, the defendant was not deprived of theeffective assistance of counsel (see People v Bowles, 89 AD3d at 181).
The defendant's contention that his underlying plea of guilty was not knowing andvoluntary is not properly before this Court.
The defendant's remaining contentions raised in his pro se supplemental brief eitherare without merit or are based upon matter dehors the record. Dillon, J.P., Angiolillo,Leventhal and Lott, JJ., concur.