| People v Montano |
| 2015 NY Slip Op 00739 [124 AD3d 857] |
| January 28, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Steven Montano, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Michael McLaughlin of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andMorgan J. Dennehy of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Foley,J.), dated January 19, 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. However, since the record issufficient for this Court to make its own findings of fact and conclusions of law, remittalis not required (see People vJohnson, 118 AD3d 684, 684 [2014]; People v Brown, 116 AD3d 1017, 1017-1018 [2014]).
In determining a defendant's risk level pursuant to SORA (see CorrectionLaw art 6-C), the People bear the burden of establishing the facts supporting thedeterminations sought by clear and convincing evidence (see Correction Law§ 168-n [3]; People v Mingo, 12 NY3d 563, 571 [2009]; People v Graves, 121 AD3d959 [2014]; People vKing, 80 AD3d 681, 682 [2011]). Contrary to the defendant's contention, he wasproperly assessed 10 points under risk factor 12 for failure to accept responsibility for hisconduct. The evidence before the Supreme Court, including the contents of the casesummary and the presentence report, demonstrated by clear and convincing evidence thatthe defendant had not accepted responsibility for his conduct (see People v Shkreli, 115AD3d 728, 728 [2014]; People v Quinn, 99 AD3d 776, 777 [2012]; People v Ferrer, 69 AD3d513, 515 [2010]).
The Supreme Court properly denied the defendant's application for a downwarddeparture from his designation as a level two sex offender. The record does not reflectthe existence of any special circumstances that would warrant a downward departure(see People v Johnson, 118 AD3d at 685; People v Wyatt, 89 AD3d 112 [2011]).
The defendant's remaining contention is without merit.
Accordingly, the Supreme Court properly designated the defendant a level two sex[*2]offender. Mastro, J.P., Roman, Sgroi and Barros, JJ.,concur.