Opinion
No. 539 KA 23-00304
07-26-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. CRAIG ALLIS, DEFENDANT-APPELLANT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., BANNISTER, OGDEN, GREENWOOD, AND KEANE, JJ.
Appeal from an order of the Supreme Court, Monroe County (Daniel J. Doyle, J.), entered May 10, 2022. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that Supreme Court erred in refusing to grant him a downward departure from risk level three to risk level two. Initially, we conclude that, although the court failed to set forth its findings of fact and conclusions of law in denying defendant's request for a downward departure, "the record is sufficient for us to make our own findings of fact and conclusions of law," thereby obviating the need for remittal (People v Snyder, 218 A.D.3d 1356, 1356 [4th Dept 2023], lv denied 41 N.Y.3d 902 [2024]). With respect to the merits, even assuming, arguendo, that defendant adequately identified mitigating circumstances that are, as a matter of law, of a kind or to a degree not adequately taken into account by the Guidelines and proved their existence by a preponderance of the evidence (see generally People v Gillotti, 23 N.Y.3d 841, 861 [2014]), we conclude, based upon the totality of the circumstances, that a downward departure is not warranted (see People v Burgess, 191 A.D.3d 1256, 1257 [4th Dept 2021]; see generally Gillotti, 23 N.Y.3d at 861).