People v Lawrence (2013 NY Slip Op 51130(U))

People v Lawrence (Anthony)

2013 NY Slip Op 51130(U) [40 Misc 3d 131(A)]

Decided on July 8, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

The People of the State of New York, Respondent, —

against

Anthony Lawrence, Appellant.

Appeal from an order of the Criminal Court of the City of New York, Richmond County (Alan J. Meyer, J.), entered October 4, 2010. The order, after a hearing, designated defendant a level three sex offender pursuant to Correction Law article 6-C.

At a Sex Offender Registration Act (SORA) hearing, the People presented the case summary of the Board of Examiners of Sex Offenders in support of the 135 points assessed against defendant in the risk assessment instrument. Defendant's attorney did not raise any objection to the 135 points assessed, but, without presenting any evidence of mitigating factors,requested a downward departure from the presumptive risk level. The Criminal Court denied defendant's request and designated defendant a level three sex offender. Although, in rendering its order, the Criminal Court did not set forth the "findings of fact and conclusions of law on which [its] determinations [were] based" (Correction Law § 168-n [3]), remittal is not required, as the record is sufficient for this court on appeal to make its own findings of fact and conclusions of law (see People v Finizio, 100 AD3d 977 [2012]; People v Harris, 93 AD3d 704 [2012]).

The record contains the case summary prepared by the Board of Examiners of Sex [*2]Offenders detailing defendant's prior convictions, his drug abuse, his lack of responsibility, and the facts of the instant offense, which involve defendant's forcible touching of the breast and vaginal area over clothing of a 12-year-old girl who was a stranger to him. The summary further notes that, upon his release from prison, defendant would not be supervised. In view of the foregoing, the People established, by clear and convincing evidence (see Correction Law § 168-n; People v Finizio, 100 AD3d 977), that the assessment of 135 points against defendant in the risk assessment instrument was proper.

In seeking a downward departure, defendant failed in his initial burden of establishing, by a preponderance of the evidence (see People v Wyatt, 89 AD3d 112, 127-128 [2011]), facts which are not otherwise adequately taken into account by the SORA guidelines (see People v Boykin, 102 AD3d 937 [2013]), to warrant such a downward departure. We note that the issues raised by defendant for the first time on appeal are not properly before this court (see People v Arocho, 82 AD3d 429 [2011]; People v Joe, 74 AD3d 404 [2010]).