| People v Fitzpatrick |
| 2014 NY Slip Op 05780 [120 AD3d 565] |
| August 13, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Patricio Fitzpatrick, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Natalie Rea of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, AdamM. Koelsch, and Daniel Berman of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Foley,J.), dated October 16, 2012, which, after a hearing, designated him a level two sexoffender 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]).
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]). In asserting that the Supreme Court improvidently exercised its discretion indenying his application for a downward departure, the defendant's contentions are almostexclusively based on matter that is dehors the record which may not be reviewed ondirect appeal (see People vRoache, 110 AD3d 776, 777 [2013]; see also People v Sivels, 114 AD3d 708, 709 [2014]). Tothe extent that the defendant's contentions may be reviewed, they are without merit. Onthe record presented, the defendant failed to identify a mitigating circumstance which isof a kind or to a degree not adequately taken into account by the SORA guidelines(see People v Gillotti, 23 NY3d 841 [2014];People v Wyatt, 89 AD3d at 128).
The defendant's remaining contention, that he was improperly assessed 15 pointsunder risk factor 11, is unpreserved for appellate review, and, in any event, withoutmerit. Mastro, J.P., Dickerson, Hinds-Radix and Duffy, JJ., concur.