| People v Vegh |
| 2015 NY Slip Op 09663 [134 AD3d 1084] |
| December 30, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Martin Vegh, Appellant. |
Lynn W. L. Fahey, New York, NY (Jenin Younes of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove andMorgan J. Dennehy of counsel; Matthis Chiroux on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County(Brennan, J.), dated September 17, 2014, 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 did not 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 Welch, 126 AD3d 773, 773 [2015]; People v Amaya, 121 AD3d874, 874-875 [2014]).
In determining a defendant's risk level pursuant to SORA, a downward departurefrom a sex offender's presumptive risk level generally is warranted only where thereexists a mitigating factor of a kind, or to a degree, that is not otherwise adequately takeninto account by the SORA Guidelines (see People v Gillotti, 23 NY3d 841, 861 [2014]; People v Watson, 95 AD3d978, 979 [2012]; Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 4 [2006]). Under the circumstances of this case, the defendant's age didnot warrant a downward departure from his presumptive risk level (see People v Shelton, 126AD3d 959, 960 [2015]; People v McFarland, 120 AD3d 1121, 1122 [2014]; People v Grubbs, 107 AD3d771, 773 [2013]; People vBeyah, 76 AD3d 917, 917 [2010]; People v Harrison, 74 AD3d 688, 688 [2010]). Moreover,none of the other factors identified by the defendant, either singly, in combination witheach other, or in combination with the defendant's age, showed that the presumptive risklevel overassessed the risk and danger of reoffense (see People v Torres, 124 AD3d 744, 746 [2015]; Peoplev Grubbs, 107 AD3d at 773). Accordingly, the Supreme Court properly denied thedefendant's request for a downward departure from his presumptive designation as alevel two sex offender and designated him a level two sex offender. Hall, J.P., Austin,Roman and Barros, JJ., concur.