| People v Brown |
| 2014 NY Slip Op 02911 [116 AD3d 1017] |
| April 30, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lawrence Brown, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Steven A.Bender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from an amended order of the County Court, WestchesterCounty (Cacace, J.), entered September 24, 2012, which, after a hearing, designated hima level two sex offender pursuant to Correction Law article 6-C.
Ordered that the amended order is affirmed, without costs or disbursements.
The County Court's designation of the defendant as a level two sex offender underthe Sex Offender Registration Act (hereinafter SORA) was supported by clear andconvincing evidence (see Correction Law § 168-n [3]; People v Pettigrew, 14 NY3d406, 408 [2010]; People vMingo, 12 NY3d 563, 571 [2009]; People v Atkinson, 65 AD3d 1112 [2009]; People v Bright, 63 AD3d1133 [2009]). Contrary to the defendant's contention, in scoring the defendantpursuant to the SORA risk assessment instrument, the court adequately set forth itsfindings of fact and conclusions of law, and properly assessed 30 and 20 points underrisk factors 3 and 7, respectively (see Correction Law § 168-n [3]; People v Johnson, 11 NY3d416, 419-420 [2008]; People v Poole, 90 AD3d 1550 [2011]; People v Harding, 87 AD3d627 [2011]; People vBretan, 84 AD3d 906 [2011]; People v Stella, 71 AD3d 970 [2010]; People v Perahia, 57 AD3d865 [2008]; see also Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary at 10, 12 [2006]). Contrary to the defendant's contention,the position statement issued by the Board of Examiners of Sex Offenders in June 2012does not depart from the holding in People v Johnson (11 NY3d 416 [2008]), that offendersconvicted of possession of child pornography are properly scored under risk factors 3and 7.
In denying the defendant's request for a downward departure, the County Courtfailed to adequately set forth its findings of fact and conclusions of law (seeCorrection Law § 168-n [3]). 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 Johnson, 109AD3d 972 [2013], lv denied 22 NY3d 861 [2014]; People v Grubbs, 107 AD3d771 [2013]; People vBoykin, 102 AD3d 937 [2013]). Upon our review of the record, we find that itwas not an improvident exercise of discretion for the County Court to deny thedefendant's request for a downward departure to a level one sex offender (see Peoplev Johnson, 11 NY3d at 421; People v Wyatt, 89 AD3d 112, 127-128 [2011]; People v Mendez, 79 AD3d834 [2010]). Dillon, J.P., Hall, Cohen and Hinds-Radix, JJ., concur.