Opinion
2022-02568
04-20-2022
The People of the State of New York, respondent, v. Eduardo Hernandez, appellant.
Thomas E. Walsh II, District Attorney, New City, NY (Renada N. Lewis of counsel), for respondent. James D. Licata, New City, NY (Lois Cappelletti of counsel), for appellant.
Thomas E. Walsh II, District Attorney, New City, NY (Renada N. Lewis of counsel), for respondent.
James D. Licata, New City, NY (Lois Cappelletti of counsel), for appellant.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the County Court, Rockland County (Kevin F. Russo, J.), dated December 24, 2020, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
ORDERED that the order is affirmed, without costs or disbursements.
In August 2004, the defendant was convicted, upon his plea of guilty, of rape in the first degree and kidnapping in the second degree. In this proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA), the County Court, after a hearing, assessed the defendant 95 points, resulting in a presumptive risk level two designation, granted the People's request for an upward departure from the presumptive risk level, and designated the defendant a level three sex offender.
Correction Law § 168-n(3) requires a court making a risk level determination to "render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based" (see People v Green, 195 A.D.3d 754; People v Porciello, 193 A.D.3d 993). Here, the County Court failed to adequately set forth findings of fact and conclusions of law to support its determination to grant the People's request for an upward departure from the presumptive risk level. Nevertheless, remittal is not necessary because the record is sufficient for this Court to make its own findings of fact and conclusions of law (see People v Porciello, 193 A.D.3d at 993-994).
An upward departure from the presumptive risk level is permitted only if the court determines, upon clear and convincing evidence, "that there exists an aggravating... factor of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] guidelines" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]; see People v Gillotti, 23 N.Y.3d 841, 861). Here, the People established, by clear and convincing evidence, that the defendant's subsequent conviction of kidnapping in the second degree for an offense that he committed in 2002 constituted an aggravating factor of a kind, or to a degree, not adequately taken into account by the Guidelines (see People v Ciccarello, 187 A.D.3d 1224). Moreover, an upward departure was warranted in light of the totality of the circumstances (see People v Gillotti, 23 N.Y.3d at 861).
Accordingly, we affirm the order.
BARROS, J.P., CHAMBERS, MALTESE and WOOTEN, JJ., concur.