People v. Stewart

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 (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 [2014]; People v Grubbs, 107 AD3d 771 [2013]; People v Lacewell, 103 AD3d 784 [2013]). 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 [2014]; People v Johnson, 11 NY3d 416 , 421 [2008]; People v Wyatt, 89 AD3d 112 , 127-128 [2011]; People v Mendez, 79 AD3d 834 [2010]). 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:

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.