People v. Bogert

The risk assessment instrument generally results in a

Here, even accepting the defendant’s contention that the County Court, in upwardly departing from the presumptive risk level two to risk level three, failed to set forth adequate findings of fact and conclusions of law as mandated by Correction Law § 168-n (3), remittal is not required as the record is sufficient for this Court to make its own findings of fact and conclusions of law (see People v Melzer, 89 AD3d 1000 [2011]; People v Vega, 79 AD3d 718 [2010]; People v Rodriguez, 78 AD3d 1140 [2010]; People v Forney, 28 AD3d 446 [2006]). In support of their application for an upward departure, the People presented clear and convincing evidence of the existence of aggravating factors, including the defendant’s admitted failure to voluntarily comply with a medication regimen to control his mental illness and his professed belief that although the sexual offenses he committed against his daughter were illegal, his conduct was morally proper (see Guidelines at 4-5; People v Wyatt, 89 AD3d at 121 ). Accordingly, the County Court providently exercised its discretion in upwardly departing from the presumptive risk level two to risk level three (see Correction Law § 168-n [3]; People v Wyatt, 89 AD3d at 121 ).

The defendant’s contention that the People failed to provide adequate notice that they might seek an upward departure is unpreserved for appellate review (see People v Charache, 9 NY3d 829 , 830 [2007]) and, in any event, without merit (see Correction Law § 168-n [3]; People v Thompson, 31 AD3d 409 [2006]; People v Hammonds, 27 AD3d 441 [2006]).