| People v Tisman |
| 2014 NY Slip Op 02913 [116 AD3d 1018] |
| April 30, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Andrew Tisman, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel;Phillip Scholz on the brief), for respondent.
Appeal by the defendant, as limited by his brief, from so much of an order of theCounty Court, Suffolk County (Kahn, J.), dated March 22, 2013, as, after a hearing,designated him a level two sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
At a hearing conducted pursuant to the Sex Offender Registration Act (seeCorrection Law art 6-C [hereinafter SORA]) to determine the defendant's SORA risklevel, the defendant requested that the County Court downwardly depart from hispresumptive risk level, relying, inter alia, upon his participation in a sex offendertreatment program. In this respect, the defendant identified an appropriate mitigatingfactor that could provide a basis for a discretionary downward departure, as the SexOffender Registration Act: Risk Assessment Guidelines and Commentary recognizes that"[a]n offender's response to treatment, if exceptional, can be the basis for a downwarddeparture" (Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 17 [2006]; seePeople v Jackson, 114 AD3d 739 [2014]; People v Pendleton, 112 AD3d 600 [2013], lv denied22 NY3d 861 [2014]; People v Roldan, 111 AD3d 909 [2013], lv denied22 NY3d 862 [2014]; People v Washington, 84 AD3d 910, 911 [2011]).
Although the County Court failed to set forth findings of fact and conclusions of lawto support its denial of the defendant's request for a downward departure on the basis ofhis participation in a sex offender treatment program, remittal to the County Court is notrequired since the record is sufficient for this Court to make its own findings of fact andconclusions of law (see Peoplev Watson, 95 AD3d 978, 979 [2012]; People v Harris, 93 AD3d 704 [2012]). Upon our review ofthe record, we conclude that the defendant failed to establish facts in support of thismitigating factor by a preponderance of the evidence, because he did not establish thathis response to treatment was exceptional (see People v Jackson, 114 AD3d 739 [2014]; People v Pendleton, 112 AD3d600 [2013]; People vRoldan, 111 AD3d 909 [2013]; People v Guzman, 110 AD3d 863 [2013], lv denied22 NY3d 859 [2014]; People v Perez, 104 AD3d 746 [2013]).
The defendant's remaining contention is without merit.[*2]
Accordingly, the County Court properly deniedthe defendant's application for a downward departure from his presumptive SORA risklevel. Skelos, J.P., Austin, Sgroi and LaSalle, JJ., concur.