| People v Johnson |
| 2014 NY Slip Op 03992 [118 AD3d 684] |
| June 4, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dashawn Johnson, Appellant. |
Scott A. Rosenberg, New York, N.Y. (Cheryl P. Williams of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove,Linda Breen, and Daniel Berman of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County(DiMango, J.), dated November 23, 2010, which, after a hearing, designated him a leveltwo sex 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 leveldetermination pursuant to the Sex Offender Registration Act (see Correction Lawart 6-C [hereinafter SORA]) to "render an order setting forth its determinations and thefindings of fact and conclusions of law on which the determinations are based"(Correction Law § 168-n [3]). Here, the Supreme Court failed to adequatelyset forth its findings of fact and conclusions of law in its order. However, since therecord is sufficient for this Court to make its own findings of fact and conclusions oflaw, remittal is not required (seePeople v Grubbs, 107 AD3d 771, 772 [2013]; People v Lacewell, 103 AD3d784, 784-785 [2013]; People v Finizio, 100 AD3d 977, 977 [2012]).
"In establishing a defendant's risk level pursuant to SORA, the People bear theburden of establishing, by clear and convincing evidence, the facts supporting thedeterminations sought" (People v Grubbs, 107 AD3d at 772 [internal quotationmarks omitted]; see Correction Law § 168-n [3]; see alsoSex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5[2006]; People v Lacewell, 103 AD3d at 785; People v Finizio, 100AD3d at 978). " 'In assessing points, evidence may be derived from thedefendant's admissions, the victim's statements, evaluative reports completed by thesupervising probation officer, parole officer, or corrections counselor, case summariesprepared by the Board of Examiners of Sex Offenders . . . or any otherreliable source, including reliable hearsay' " (People v Grubbs, 107 AD3dat 772, quoting People v Lacewell, 103 AD3d at 785; see People v Mingo, 12 NY3d563 [2009]; People v Finizio, 100 AD3d at 978; People v Crandall, 90 AD3d628, 629 [2011]; see also Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary at 5).
Contrary to the defendant's contention, he was properly assessed 15 points under riskfactor 12 for not accepting responsibility for his conduct. The defendant's lengthydisciplinary record while incarcerated, which had the effect of preventing him fromparticipating in a sex offender treatment program, may be considered evidence of arefusal of treatment (see Peoplev Peana, 68 AD3d 737 [2009]). Moreover, "[a]n offender who does not acceptresponsibility for his conduct or minimizes what occurred is a poor prospect forrehabilitation" (Sex Offender Registration Act: [*2]RiskAssessment Guidelines and Commentary at 15). In certain statements described in thepresentence report and case summary concerning the underlying incident, the defendantminimized the nature of the incident (see People v Perry, 85 AD3d 890 [2011]). Accordingly, theSupreme Court properly assessed the defendant 15 points under risk factor 12 for failureto accept responsibility. Additionally, contrary to the defendant's contention, theassessment of these points and 10 points under risk factor 13 for unsatisfactory conductwhile confined did not amount to impermissible "double counting" (People v Ologbonjaiye, 109AD3d 804, 805 [2013]; seePeople v O'Neal, 35 AD3d 302, 302 [2006]).
The Supreme Court providently exercised its discretion in denying the defendant'srequest for a downward departure from his presumptive designation as a risk level twosex offender, as the record does not reflect the existence of special circumstanceswarranting a downward departure (see generally People v Wyatt, 89 AD3d 112, 118-122[2011]). The majority of the factors upon which the defendant relied in support of hisrequest for a downward departure were adequately taken into account by the Guidelines(see generally Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 4; People vMartinez-Guzman, 109 AD3d 462 [2013]), and, otherwise, the factors on whichthe defendant relied did not "tend[ ] to establish a lower likelihood of reoffense or dangerto the community" (People vFryer, 101 AD3d 835, 836 [2012]; see People v Martinez-Guzman, 109AD3d at 462-463; People vWatson, 95 AD3d 978, 979 [2012]).
The defendant's remaining contentions are unpreserved for appellate review and, inany event, without merit.
Accordingly, the Supreme Court properly designated the defendant a level two sexoffender pursuant to Correction Law article 6-C. Dillon, J.P., Dickerson, Cohen andDuffy, JJ., concur.