| People v Hemmes |
| 2013 NY Slip Op 07092 [110 AD3d 1387] |
| October 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vJoseph H. Hemmes, Appellant. |
—[*1] James Sacket, District Attorney, Schoharie (Michael L. Breen of counsel), forrespondent.
McCarthy, J. Appeal from an order of the County Court of Schoharie County(Bartlett III, J.), entered February 1, 2013, which classified defendant as a risk level IIsex offender pursuant to the Sex Offender Registration Act.
In satisfaction of a 17-count indictment, defendant pleaded guilty to criminal sexualact in the second degree, rape in the second degree and disseminating indecent materialto minors in the first degree. In anticipation of his release from prison, the Board ofExaminers of Sex Offenders prepared a risk assessment instrument, pursuant to the SexOffender Registration Act (see Correction Law art 6-C), that presumptivelyclassified defendant as a risk level II sex offender. Following a hearing, County Courtadopted the Board's recommendation and classified defendant as a risk level II sexoffender. Defendant appeals.
County Court assigned defendant 95 points, placing him within risk level II (75 to105 points). Defendant only challenges the assignment of points in twocategories—risk factor 3, addressing the number of victims, and risk factor 7,addressing his relationship to the victim or victims. Unfortunately, County Court failed tocomply with the statutory mandate to issue a written order setting forth its findings offact and conclusions of law to support its determination (see Correction Law§ 168-n [3]; People vCrowley, 64 AD3d 918, 919 [2009]). Despite this error, remittal is unnecessarywhere the court makes oral findings and conclusions that "are clear, [*2]supported by the record and sufficiently detailed to permitintelligent review" (People vCarter, 106 AD3d 1202, 1203 [2013]), or the record is sufficient for this Courtto make its own factual findings and conclusions (see People v Urbanski, 74 AD3d 1882, 1883 [2010], lvdenied 15 NY3d 707 [2010]; People v Guitard, 57 AD3d 751, 751 [2008], lvdenied 12 NY3d 704 [2009]).
County Court's oral findings were not clear or clearly supported by the record, butthe record is sufficient for this Court to make enough of its own findings to determine theproper classification. County Court assigned 30 points under risk factor 3 for defendanthaving three or more victims, without identifying which particular individuals itconsidered as victims. The court also assigned 20 points under risk factor 7, indicatingthat defendant was a stranger or established a relationship for the purpose of victimizing,but did not explain which of those two labels was applicable or to which victim orvictims the label applied. During its oral discussion, the court intertwined statementsabout different factors and stated that it relied on the case summary and presentenceinvestigation report, but also found defendant's testimony—which was in someways inconsistent with those documents—credible, creating further uncertaintyregarding the basis for the court's findings and conclusions.
Although confusion in the record and the lack of County Court's written findingsmay preclude us from confirming that defendant had three or more victims, the recordclearly establishes two victims, requiring an assessment of 20 points under risk factor 3.Defendant's convictions for rape and criminal sexual act were with one identified victim.His conviction for disseminating indecent materials to minors stemmed from his onlineinteractions with an undercover officer. Contrary to defendant's argument, theundercover officer, who posed as (and defendant thought was) a 14-year-old girl, canconstitute a victim as contemplated by the Sex Offender Registration Act (see People v DeDona, 102AD3d 58, 64-67 [2012]). While defendant may have had three or more victims, therecord contains clear and convincing evidence that he had at least two victims. Thus, weassign 20 points, rather than 30, for that factor.
Despite the lack of findings and clarity concerning defendant's relationship with anyother actual or potential victims, the record shows that the undercover officer was astranger to defendant, and that he established an online relationship with her for purposesof victimization (see People vDuart, 84 AD3d 908, 909 [2011], lv dismissed 17 NY3d 916 [2011]; People v Tejada, 51 AD3d472, 472 [2008]). As 20 points were properly assigned under risk factor 7 for thatvictim, we need not characterize defendant's relationship with the rape victim. Even if wededuct 10 points under risk factor 3 due to factual uncertainty on that factor, defendantstill has 85 points, placing him presumptively within risk level II. Accordingly, he wascorrectly classified as a risk level II sex offender.
Lahtinen, J.P., Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.