Opinion
2013-04-3
PEOPLE of State of New York, respondent, v. James EATON, appellant.
Mark Diamond, New York, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Steven A. Bender and Richard Longworth Hecht of counsel), for respondent.
Mark Diamond, New York, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Steven A. Bender and Richard Longworth Hecht of counsel), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, and SYLVIA HINDS–RADIX, JJ.
Appeal by the defendant from an order of the County Court, Westchester County (Cacace, J.), entered April 14, 2011, 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.
Correction Law § 168–n(3) requires a court making a risk level determination pursuant to the Sex Offender Registration Act ( see Correction Law article 6–C; hereinafter SORA) to “render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based” (Correction Law § 168–n[3] ). Here, the County Court failed to adequately set forth its findings of fact and conclusions of law in its order. However, since the record is sufficient for this Court to make its own findings of fact and conclusions of law, remittal is not required ( see People v. Finizio, 100 A.D.3d 977, 954 N.Y.S.2d 636,lv. denied20 N.Y.3d 860, 2013 N.Y. Slip Op. 08108, 2013 WL 537111 [2013];People v. Harris, 93 A.D.3d 704, 704, 940 N.Y.S.2d 127).
In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determinations sought ( seeCorrection Law § 168–n[3]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; People v. Finizio, 100 A.D.3d at 978, 954 N.Y.S.2d 636). “[E]vidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders ... or any other reliable source, including reliable hearsay” ( People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446;see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]; see also People v. Mingo, 12 N.Y.3d 563, 883 N.Y.S.2d 154, 910 N.E.2d 983).
Here, the People met their burden of establishing, by clear and convincing evidence, that the court should apply two automatic overrides addressing the defendant's prior recent threat to reoffend and a clinical assessment that he has a psychological abnormality that decreases his ability to control impulsive sexual behaviors ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3–4 [2006] ). Therefore, irrespective of the points scored on the risk assessment instrument, the defendant was presumptively a level three sex offender ( see People v. Carter, 85 A.D.3d 995, 925 N.Y.S.2d 874; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3–4 [2006] ).
To the extent that the defendant established facts that might warrant a downward departure from his presumptive risk level designation ( see People v. Johnson, 11 N.Y.3d at 421, 872 N.Y.S.2d 379, 900 N.E.2d 930;People v. Bretan, 84 A.D.3d at 907–908, 922 N.Y.S.2d 542), upon examining all of the circumstances relevant to the defendant's risk of reoffense and danger to the community, the County Court providently exercised its discretion in denying the defendant's application for a downward departure ( see People v. Carroll, 102 A.D.3d 848, 849, 959 N.Y.S.2d 503;People v. Wyatt, 89 A.D.3d 112, 127–128, 931 N.Y.S.2d 85;People v. Harding, 87 A.D.3d at 627, 928 N.Y.S.2d 734).
The defendant's contention that he was denied the effective assistance of counsel ( see People v. Bowles, 89 A.D.3d 171, 173, 932 N.Y.S.2d 112;see also People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674) is without merit.
The defendant's remaining contentions either are without merit or need not be addressed in light of our determination.