| People v Perez |
| 2014 NY Slip Op 02020 [115 AD3d 919] |
| March 26, 2014 |
| Appellate Division, Second Department |
| The People of State of New York,Respondent, v Jesus D. Perez, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea ofcounsel), for respondent.
Appeal by the defendant from an order of the County Court, Dutchess County(Dolan, J.), dated March 25, 2008, which, after a hearing, designated him a level threesex 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 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 [2013]; People vFinizio, 100 AD3d 977 [2012], lv denied 20 NY3d 860 [2013]).
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]; see People v Mingo, 12 NY3d563 [2009]).
Here, the County Court's designation of the defendant as a level three sex offenderunder SORA is supported by clear and convincing evidence (see People v Robinson, 55AD3d 708 [2008]). The defendant's unsatisfactory conduct during his incarceration,which was established, inter alia, by the case summary, warranted the assessment of 10points under risk factor 13 (seePeople v Watson, 109 AD3d 463 [2013]). Moreover, even assuming that 15points had been improperly assessed against the defendant under risk factor 11, based ona history of drug or alcohol abuse, subtracting the 15 points assigned for this risk factorwould not alter the defendant's presumptive risk level (see People v Mercado, 55AD3d 583, 583 [2008]). Skelos, J.P., Dickerson, Leventhal and Hall, JJ., concur.