People v. Conrad

193 A.D.3d 1187

145 N.Y.S.3d 677

The PEOPLE of the State of New York, Respondent,

v.Wayne CONRAD, Appellant.

528733

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: March 10, 2021

Decided and Entered: April 8, 2021

Stephen W. Herrick, Public Defender, Albany (Steven M. Sharp of counsel), for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: Egan Jr., J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

Appeal from an order of the County Court of Albany County (Carter, J.), entered November 29, 2018, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.

In 2012, defendant was convicted of the federal crime of receipt of child pornography (see 18 USC § 2252A [a][2]) and was sentenced to a prison term of 96 months to be followed by a lifetime of supervised release. In August 2018, he was transferred to a community correction center in Albany County pending the commencement of his supervised release. In anticipation thereof, the Board of Examiners of Sex Offenders prepared a risk assessment instrument (hereinafter RAI) under the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA]) that assigned 30 points to risk factor 5 (age of victim) and presumptively placed him in the risk level one classification. The People, in turn, prepared an RAI assigning 30 points to this risk factor, as well as 30 points to risk factor 3 (number of victims) and 20 points to risk factor 7 (relationship with victim), resulting in a total of 80 points, presumptively placing defendant in the risk level two classification. At the hearing that followed, defense counsel requested, in the event that County Court adopted the People's RAI, that there be a downward departure to risk level one based upon a psychological treatment summary prepared while defendant was in prison. County Court, however, adopted the People's RAI and classified defendant as a risk level two sex offender. Defendant appeals.

Initially, defendant contends that County Court failed to set forth its findings of fact and conclusions of law supporting its classification of defendant as a risk level two sex offender as required by Correction Law § 168–n (3). Correction Law § 168–n (3) provides that, at the conclusion of a SORA hearing, County Court "shall 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] ). "Such order must be in writing and entered and filed in the office of the clerk of the court where the action is pending" ( id. at 1569, 99 N.Y.S.3d 783 ). Here, County Court utilized a short form order that alludes to the findings of fact and conclusions of law made on the record in open court, but such findings and conclusions are not sufficiently detailed to permit intelligent review (see People v. Brown, 190 A.D.3d 1120, 1122, 140 N.Y.S.3d 303 [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] ). Remittal, however, is unnecessary as the record is sufficiently developed to enable us to make our own factual findings and legal conclusions (see People v. Brown, 190 A.D.3d at 1122, 140 N.Y.S.3d 303 ; People v. Coe, 167 A.D.3d 1175, 1176, 88 N.Y.S.3d 717 [2018] ).

"In establishing the appropriate risk level classification under SORA, the People ‘bear the burden of proving the facts supporting the determination[ ] sought by clear and convincing evidence’ " ( People v. Phillips, 177 A.D.3d 1108, 1109, 112 N.Y.S.3d 349 [2019], quoting Correction Law § 168–n [3] ; see People v. Benton, 185 A.D.3d 1103, 1104, 125 N.Y.S.3d 206 [2020], lv denied 35 N.Y.3d 916, 2020 WL 6169835 [2020] ). In support of the RAI placing defendant in the risk level two classification, the People submitted the federal presentence investigation report (hereinafter PSI) and the case summary detailing the nature of defendant's crime. Such documentation is reliable hearsay that has been found to constitute clear and convincing evidence supporting a risk level classification (see People v. Benton, 185 A.D.3d at 1109, 125 N.Y.S.3d 206; People v. Phillips, 177 A.D.3d at 1110, 112 N.Y.S.3d 349 ).

According to this documentation, federal investigators recovered from defendant's computer as many as 1,000 still images and 80 videos depicting children, mostly girls between the ages of 4 and 14, engaged in a variety of sexual acts, as well as images that included "sadomasochistic conduct on infants and toddlers." The investigators noted that, when defendant was taken into custody, he admitted that he had downloaded thousands of images and videos of child pornography depicting children "ranging from toddlers to prepubescents and teens." Reference to the young ages of these victims of child pornography supports the assignment of 30 points to risk factor 5 (see People v. Henry, 182 A.D.3d 939, 940, 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 at 1109, 112 N.Y.S.3d 349 ). Likewise, the multitude of victims depicted in the thousands of pornographic images recovered supports the assignment of 30 points to risk factor 3 (see People v. Gillotti, 23 N.Y.3d 841, 855, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; People v. Henry, 182 A.D.3d at 940, 122 N.Y.S.3d 197 ).¹ Furthermore, although defendant did not know the victims or have personal contact, "risk factor 7 extends to children depicted in child pornography who are strangers to the offender and allows for the assessment of 20 points" ( People v. Phillips, 177 A.D.3d at 1109, 112 N.Y.S.3d 349 ; see People v. Henry, 182 A.D.3d at 940, 122 N.Y.S.3d 197 ). In view of the foregoing, and given that a total of 80 points were assigned based on the above risk factors, we find that clear and convincing...