People v. Carlton

*1655Appeal from an order of the Ontario County Court (Frederick G. Reed, J.), entered July 27, 2009. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

It is hereby ordered that the order so appealed from is affirmed without costs.

Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that County Court erred in failing to set forth its findings of fact and conclusions of law, as required by Correction Law § 168-n (3). Although defendant is correct that the court failed to do so, we nevertheless conclude that the record before us is sufficient to enable us to make our own findings of fact and conclusions of law, thus rendering remittal unnecessary (see People v Urbanski, 74 AD3d 1882 [2010], lv denied 15 NY3d 707 [2010]; cf. People v Leopold, 13 NY3d 923 [2010]).

We reject the further contention of defendant that the court erred in assessing 20 points against him under the risk factor for his relationship with the victims and 25 points against him under the risk factor for drug or alcohol abuse. Based on the record before us, we conclude that the People established both of the disputed risk factors by the requisite clear and convincing evidence (see Correction Law § 168-n [3]). With respect to defendant’s relationship with the victims, the case summary establishes that, when interviewed by the Board of Examiners of Sex Offenders, defendant stated that he was employed as a bus driver of mentally disabled women at the time of the underlying crimes and that he selected the three victims because he believed they were incapable of reporting his crimes. Such evidence establishes that defendant had a professional relationship with the three victims, thus justifying the assessment of 20 points with respect to that risk factor (see generally People v Stein, 63 AD3d 99, 101-102 [2009]).

Further, with respect to defendant’s history of drug and alcohol abuse, the presentence report establishes that defendant began drinking alcohol at age 11 and using marihuana at age 14 and that he used LSD and “angel dust” for a period of approximately seven years. Defendant also reported that he was addicted to cocaine, marihuana and alcohol. Those facts constitute clear and convincing evidence of defendant’s history of drug and alcohol abuse, thus justifying the assessment of 25 points with respect to that risk factor (see Urbanski, 74 AD3d 1882, 1883; see also People v Guitard, 57 AD3d 751 [2008], lv denied 12 NY3d 704 [2009]).

*1656All concur except Martoche and Centra, JJ., who dissent and vote to modify in accordance with the following memorandum.