People v. Smith

144 A.D.3d 652

40 N.Y.S.3d 473

2016 N.Y. Slip Op. 07171

PEOPLE of State of New York, respondent,

v.Kareem SMITH, appellant.

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

Nov. 2, 2016.

Clare J. Degnan, White Plains, NY (Jacqueline F. Oliva of counsel; Michael Chiaramonte on the brief), for appellant.

James A. McCarty, Acting District Attorney, White Plains, NY (Laurie Sapakoff and Steven Bender of counsel), for respondent.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN and HECTOR D. LaSALLE, JJ.

Appeal by the defendant from an order of the County Court, Westchester County (R. Bellantoni, J.), entered July 18, 2007, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

Correction Law § 168–n(3) requires a court making a risk level determination pursuant to the Sex Offender Registration Act (see Correction Law art 6–C; hereinafter SORA) to “render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based” (Correction Law § 168–n[3] ). Here, the County Court failed to adequately set forth its findings of fact and conclusions of law in its order. However, since 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. Uphael, 140 A.D.3d 1143, 35 N.Y.S.3d 194 ; People v. Eaton, 105 A.D.3d 722, 723, 963 N.Y.S.2d 271 ; People v. Finizio, 100 A.D.3d 977, 954 N.Y.S.2d 636 ).

The County Court properly assessed 20 points against the defendant under risk factor 6, as the People established, by clear and convincing evidence, that the victim was drugged and asleep at the beginning of the incident and, therefore, was physically helpless (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 11 [2006]; Penal Law § 130.00[7] ; People v. Duff, 96 A.D.3d 1031, 946 N.Y.S.2d 891 ; People v. Rhodehouse, 88 A.D.3d 1030, 1031–1032, 930 N.Y.S.2d 105 ; People v. Caban, 61 A.D.3d 834, 877 N.Y.S.2d 403 ; People v. Davis, 51 A.D.3d 442, 857 N.Y.S.2d 542 ). Contrary to the defendant's contention, since the victim's physical helplessness was not the result of, or in any way connected with, her age, assessing points under both risk factors 5 and 6 did not constitute double counting (see People v. Caban, 61 A.D.3d at 835, 877 N.Y.S.2d 403 ; People v. Ramirez, 53 A.D.3d 990, 990–991, 863 N.Y.S.2d 114 ).

The People established, by clear and convincing evidence, that the defendant and the victim met for the first time on the night of the crime, and therefore were strangers within the meaning of SORA (see People v. Palacios, 137 A.D.3d 761, 762, 26 N.Y.S.3d 351 ; People v. Mabee, 69 A.D.3d 820, 893 N.Y.S.2d 585 ). Thus, the County Court properly assessed 20 points against the defendant under risk factor 7.

Further, the People presented clear and convincing evidence that the defendant did not genuinely accept responsibility for his conduct and minimized his behavior, thus warranting the assessment of 10 points under risk factor 12 for not accepting responsibility (see People v. Stapleton, 125 A.D.3d 951, 5 N.Y.S.3d 160 ; People v. Johnson, 118 A.D.3d 684, 986 N.Y.S.2d 860 ).

A defendant seeking a downward departure from the presumptive risk level has the initial burden of “(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of...