Opinion
2009-11361.
10-14-2015
PEOPLE of State of New York, respondent, v. Alexander RUKASOV, appellant.
Seymour W. James, Jr., New York, N.Y. (Nancy E. Little of counsel), for appellant. Daniel L. Master, Jr., Acting District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Paul M. Tarr of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Nancy E. Little of counsel), for appellant.
Daniel L. Master, Jr., Acting District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Paul M. Tarr of counsel), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, HECTOR D. LaSALLE, and BETSY BARROS, JJ.
Opinion Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated December 6, 2013, which, after a hearing, designated him a level two 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 art 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 Supreme Court did not 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. Welch, 126 A.D.3d 773, 773, 5 N.Y.S.3d 257 ; People v. Amaya, 121 A.D.3d 874, 874–875, 994 N.Y.S.2d 193 ).
In determining a defendant's risk level pursuant to SORA, “[a] downward departure from a sex offender's presumptive risk level generally is only warranted where there exists a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines” (People v. Watson, 95 A.D.3d 978, 979, 944 N.Y.S.2d 584 ; see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Romero, 113 A.D.3d 605, 605, 977 N.Y.S.2d 900 ; People v. Fernandez, 91 A.D.3d 737, 737, 936 N.Y.S.2d 556 ). “A defendant seeking a downward departure has the initial burden of ‘(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence’ ” (People v. Watson, 95 A.D.3d at 979, 944 N.Y.S.2d 584, quoting People v. Wyatt, 89 A.D.3d 112, 128, 931 N.Y.S.2d 85 ; see People v. Wortham, 119 A.D.3d 666, 666, 989 N.Y.S.2d 618 ). “A sex offender's successful showing by a preponderance of the evidence of facts in support of an appropriate mitigating factor does not automatically result in the relief requested, but merely opens the door to the SORA court's exercise of its sound discretion upon further examination of all relevant circumstances” (People v. Wyatt, 89 A.D.3d at 127, 931 N.Y.S.2d 85 ).
Under the circumstances of this case, the Supreme Court providently exercised its discretion in determining that the presumptive risk level did not overassess the danger presented by the defendant and the risk of reoffense (see People v. Morel–Baca, 127 A.D.3d 833, 834, 4 N.Y.S.3d 893 ; People v. Nethercott, 119 A.D.3d 918, 918, 989 N.Y.S.2d 900 ; see generally People v. Shelton, 126 A.D.3d 959, 960, 6 N.Y.S.3d 121 ). Accordingly, the court properly denied the defendant's application for a downward departure from his designation as a level two sex offender.