Opinion
533012
06-16-2022
The PEOPLE of the State of New York, Respondent, v. Kenneth K. WASHBURN, Appellant.
Angela Kelley, Albany, for appellant. Robert S. Rosborough IV, Special Prosecutor, Albany, for respondent.
Angela Kelley, Albany, for appellant.
Robert S. Rosborough IV, Special Prosecutor, Albany, for respondent.
Before: Garry, P.J., Aarons, Pritzker, Reynolds Fitzgerald and Fisher, JJ.
MEMORANDUM AND ORDER
Garry, P.J.
Appeal from an order of the County Court of Saratoga County (Murphy III, J.), entered August 26, 2020, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.
In 2018, defendant pleaded guilty to attempted criminal sexual act in the second degree and possessing a sexual performance by a child. Defendant's convictions stem from his engagement in sexually explicit online communications with an individual whom he believed to be a 14–year–old boy — who was, in fact, an undercover officer — and his transport of that individual to his home for the performance of sexual acts. Defendant was also found in possession of various sexually explicit images of multiple children. In preparation for his release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument under the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA]) that assigned him a total of 90 points and presumptively placed him in the risk level two classification. The People, in turn, prepared a risk assessment instrument assigning a total of 120 points, thus presumptively placing defendant in the risk level three classification. Defendant disagreed, arguing that he should be scored at a risk level one or, in the alternative, that a downward departure was warranted. Following a hearing, County Court determined that defendant should be assessed 120 points, placing him at a presumptive risk level three classification, and declined his request for a downward departure. Defendant appeals.
Initially, defendant contends that County Court failed to set forth its findings of fact and conclusions of law supporting its classification as required by Correction Law § 168–n (3). Correction Law § 168–n (3) provides that, at the conclusion of a SORA hearing, County Court must "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. Lavelle, 172 A.D.3d 1568, 1569, 99 N.Y.S.3d 783 [2019], lv denied 33 N.Y.3d 909, 2019 WL 2588100 [2019] ). Here, County Court rendered an order with findings of fact and an articulation of the parties’ arguments. Although defendant's criticism that the determination is conclusory is merited, based upon the scant analysis of these arguments, this failing does not preclude meaningful appellate review; in any event, remittal is not required here, as the record is sufficiently developed to support this Court in making its own factual findings and legal conclusions (see People v. Conrad, 193 A.D.3d 1187, 1188, 145 N.Y.S.3d 677 [2021] ; People v. Burke, 139 A.D.3d 1268, 1269, 31 N.Y.S.3d 675 [2016], lv denied 28 N.Y.3d 909, 2016 WL 6839982 [2016] ; People v. Roberts, 54 A.D.3d 1106, 1106–1107, 863 N.Y.S.2d 837 [2008], lv denied 11 N.Y.3d 713, 873 N.Y.S.2d 268, 901 N.E.2d 762 [2008] ; compare People v. Zayas, 57 A.D.3d 1179, 1179–1180, 870 N.Y.S.2d 495 [2008] ).
Defendant next challenges the assessment of 15 points for drug and alcohol abuse under risk factor 11, arguing that he does not use drugs or alcohol and has not done so for a significant period of time. In establishing defendant's risk level classification under SORA, the People "shall bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence" (Corrections Law § 168–n [3] ; see People v. Henry, 182 A.D.3d 939, 939, 122 N.Y.S.3d 197 [2020], lv denied 36 N.Y.3d 901, 2020 WL 6878064 [2020] ; People v. Phillips, 177 A.D.3d 1108, 1109, 112 N.Y.S.3d 349 [2019] ; People v. Brown, 7 A.D.3d 831, 832, 776 N.Y.S.2d 366 [2004] ). As noted by County Court, defendant has acknowledged having a significant substance abuse history, and he was convicted for felony driving while intoxicated three years before the current offense; moreover, "[a]n offender need not be abusing alcohol or drugs at the time of the instant offense to receive points in [factor 11]" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]). Thus, County Court properly assessed 15 points in this category.
As for the challenge to the 10 points assigned under risk factor 12, acceptance of responsibility, this was less than the maximum of 15 possible points. We agree that this assessment accurately reflects defendant's initial refusal to join a sex offender treatment program and, thus, County Court properly assessed 10 points in this category.
Defendant next argues that County Court erred in denying his request for a downward departure. "As the party seeking the downward departure, defendant was required to demonstrate, by a preponderance of the evidence, the existence of mitigating factors not adequately taken into consideration by the risk assessment guidelines" ( People v. Kemp, 163 A.D.3d 1339, 1341, 81 N.Y.S.3d 641 [2018] [internal quotation marks, brackets and citations omitted], lv denied 32 N.Y.3d 919, 2019 WL 1409545 [2019] ; accord People v. Holton, 193 A.D.3d 1212, 1213, 144 N.Y.S.3d 260 [2021] ; People v. Wilson, 167 A.D.3d 1192, 1193, 88 N.Y.S.3d 715 [2018] ). Here, although defendant briefly asserted a request for such consideration in remarks at the conclusion of the proceedings, the arguments asserted addressed the factors set forth within the SORA assessment instrument; defendant's other arguments, raised on appeal but not at the proceedings, are unpreserved for our review (see People v. Worley, 202 A.D.3d 1008, 1009, 159 N.Y.S.3d 717 [2022] ; People v. McKenna, 186 A.D.3d 1542, 1543, 130 N.Y.S.3d 86 [2020], lv denied 36 N.Y.3d 903, 2020 WL 7527129 [2020] ). We therefore find no basis for disturbing the determination (see People v. Graziano, 140 A.D.3d 1541, 1542, 35 N.Y.S.3d 739 [2016], lv denied 28 N.Y.3d 909, 2016 WL 6840021 [2016] ; People v. King, 72 A.D.3d 1363, 1364, 898 N.Y.S.2d 734 [2010] ; People v. Kaminski, 38 A.D.3d 1127, 1128, 833 N.Y.S.2d 266 [2007], lv denied 9 N.Y.3d 803, 840 N.Y.S.2d 763, 872 N.E.2d 876 [2007] ).
Defendant's remaining contentions have been considered and are without merit.
Aarons, Pritzker, Reynolds Fitzgerald and Fisher, JJ., concur.
ORDERED that the order is affirmed, without costs.