| People v Stewart |
| 2014 NY Slip Op 08615 |
| Decided on December 10, 2014 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on December 10, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
SHERI S. ROMAN
ROBERT J. MILLER
JOSEPH J. MALTESE, JJ.
2011-07308
v
Guy Stewart, appellant. Seymour W. James, Jr., New York, N.Y. (Lorca Morello of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Kings County (Walsh, J.), dated July 8, 2011, 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.
At a hearing conducted pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]) to determine the defendant's SORA risk level designation, the defendant conceded that he had been correctly assessed 95 points on the SORA risk assessment instrument (hereinafter RAI) (see Correction Law § 168-d[3]), which rendered him a presumptive level 2 offender, but requested that the Supreme Court downwardly depart from his presumptive risk level. The Supreme Court denied the defendant's request for a downward departure, but failed to adequately set forth its findings of fact and conclusions of law (see Correction Law § 168-d[3]). However, because 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 Brown, 116 AD3d 1017; People v Grubbs, 107 AD3d 771; People v Lacewell, 103 AD3d 784). Upon our review, we conclude that the Supreme Court properly denied the defendant's request for a downward departure to a level one sex offender (see People v Gillotti, 23 NY3d 841, 861; People v Johnson, 11 NY3d 416, 421; People v Wyatt, 89 AD3d 112, 127-128; People v Mendez, 79 AD3d 834). The defendant failed to establish, by a preponderance of the evidence, facts in support of the existence of a "mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by" the SORA Risk Assessment Guidelines (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006] [hereinafter the SORA Guidelines], at 4; see People v Gillotti, 23 NY3d at 861; People v Wyatt, 89 AD3d at 114-115, 120-121, 127-128; People v King, 74 AD3d 1162, 1163; People v Rios, 57 AD3d 501, 502; People v Miller, 48 AD3d 774, 775; People v White, 25 AD3d 677; People v Inghilleri, 21 AD3d 404, 406). Among other things, the defendant failed to demonstrate, by a preponderance of the evidence, that his response to sex offender treatment was exceptional (see SORA Guidelines at 17; People v Tisman, 116 AD3d 1018; People v Jackson, 114 AD3d 739; People v Pendleton, 112 AD3d 600; People v Roldan, 111 AD3d 909), or that the victim's lack of consent resulted solely from her age (see SORA Guidelines at 9).
The defendant's remaining contentions are unpreserved for appellate review, and in any event, without merit.
MASTRO, J.P., ROMAN, MILLER and MALTESE, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court