| People v Uphael |
| 2016 NY Slip Op 05135 [140 AD3d 1143] |
| June 29, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jeffrey Uphael, Appellant. |
Seymour W. James, Jr., New York, NY (Elizabeth L. Isaacs of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove andMorgan J. Dennehy of counsel; Gregory Musso on the brief), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Chun,J.), dated June 18, 2013, which, after a hearing, designated him a level two sex offenderpursuant 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 Eaton, 105 AD3d 722, 723 [2013]; People v Finizio, 100 AD3d 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 Eaton, 105 AD3d at 723; see CorrectionLaw § 168-n [3]). "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 Crandall, 90 AD3d 628, 629 [2011]). Presentencereports and grand jury testimony are sufficiently reliable for SORA purposes (see People v Mingo, 12 NY3d563, 573 [2009]; see alsoPeople v Welch, 126 AD3d 773, 774 [2015]).
Here, the defendant challenges the assessment of 20 points under risk factor 7 for theestablishment of a relationship with the complainant "for the primary purpose ofvictimization" (Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 12 [2006] [hereinafter the Guidelines]). Contrary to the defendant'scontention, the People established facts supporting the assessment by clear andconvincing evidence, as the record supports the inference that his relationship with thecomplainant was primarily established for the purpose of victimization, first for his ownsexual gratification, and later when he forced the complainant to engage in prostitution(see People v Padilla, 116AD3d 566 [2014]).
Turning to the defendant's request for a downward departure, a defendant seeking adownward departure from the presumptive risk level has the initial burden of "(1)identifying, as a matter of law, an appropriate mitigating factor, namely, a factor whichtends to establish a lower likelihood of reoffense or danger to the community and is of akind, or to a degree, that is otherwise not adequately taken into account by theGuidelines; and (2) establishing the facts in support of its existence by a preponderanceof the evidence" (People vWyatt, 89 AD3d 112, 128 [2011]; see People v Gillotti, 23 NY3d 841, 861 [2014]; People v Rosales, 133 AD3d733 [2015]). "At that point, the SORA court may exercise its discretion to grant ordeny the departure application based upon an examination of all circumstances relevantto the offender's risk of reoffense and danger to the community" (People v Wyatt,89 AD3d at 128).
Here, the defendant's contention that he is entitled to a downward departure becausethe complainant's lack of consent was due only to her inability to consent by virtue of herage is unpreserved for appellate review, as he failed to raise this factor at the SORAhearing (see People vRosales, 133 AD3d 733 [2015]). In any event, the defendant's contention iswithout merit. Further, the mitigating factors that were identified and properly preservedfor appellate review by the defendant were either adequately taken into account by theGuidelines or did not warrant a downward departure from the presumptive risk level (see People v Ibarra, 137 AD3d1097, 1098 [2016]).
Accordingly, the Supreme Court properly designated the defendant a level two sexoffender. Leventhal, J.P., Miller, Duffy and Connolly, JJ., concur.