Opinion
92 KA 18-02403
07-24-2020
The PEOPLE of the State of New York, Respondent, v. Dominic HAMM, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
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 two risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ), defendant contends that remittal is required inasmuch as County Court failed to consider his request for a downward departure from his presumptive risk level. We conclude, however, that "[the] omission by the court does not require remittal because the record is sufficient for us to make our own findings of fact and conclusions of law with respect to defendant's request" ( People v. Augsbury , 156 A.D.3d 1487, 1487, 67 N.Y.S.3d 367 [4th Dept. 2017], lv denied 31 N.Y.3d 903, 2018 WL 1527815 [2018] ). Upon our review of the record, we conclude that defendant failed to allege a mitigating circumstance that is, as a matter of law, of a kind or to a degree not adequately taken into account by the risk assessment guidelines and, to the extent that defendant adequately identified a mitigating circumstance, he failed to prove its existence by a preponderance of the evidence (see People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; People v. Voymas , 122 A.D.3d 1336, 1337, 995 N.Y.S.2d 438 [4th Dept. 2014], lv denied 25 N.Y.3d 913, 2015 WL 3971379 [2015] ).