People v. Velasco , 147 A.D.3d 877 ( 2017 )

People v Velasco (2017 NY Slip Op 01011)

People v Velasco

2017 NY Slip Op 01011

Decided on February 8, 2017

Appellate Division, Second Department

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

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 8, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
SHERI S. ROMAN
COLLEEN D. DUFFY
VALERIE BRATHWAITE NELSON, JJ.

2012-05727

[*1]People of State of New York, respondent,

v

Orlando Velasco, appellant.

Seymour W. James, Jr., New York, NY (Michael C. Taglieri of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Richmond County (Rienzi, J.), dated June 8, 2012, 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.

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]). Insofar as relevant here, the Supreme Court did not 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 Jackson, 139 AD3d 1031, 1031; People v Rukasov, 132 AD3d 748, 748).

"In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing, by clear and convincing evidence, the facts supporting the determinations sought" (People v Finizio, 100 AD3d 977, 978; see Correction Law § 168-n[3]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]). Here, contrary to the defendant's contention with respect to the only risk factor he challenges on appeal, the People presented clear and convincing evidence that he engaged in oral sexual conduct (see Penal Law § 130.00[2][a]) with the complainant, thus warranting the assessment of 25 points under risk factor 2 (see People v Vevgas, 83 AD3d 921, 922; People v King, 74 AD3d 1162, 1163).

Accordingly, the Supreme Court properly designated the defendant a level two sex offender.

RIVERA, J.P., ROMAN, DUFFY and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court