People v. Crandall

• Decision Date: 06 December 2011
• Parties: PEOPLE of State of New York, respondent, v. Andrew CRANDALL, appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08920
90 A.D.3d 628
934 N.Y.S.2d 446

PEOPLE of State of New York, respondent,
v.
Andrew CRANDALL, appellant.

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

Dec. 6, 2011.

[934 N.Y.S.2d 446]

Steven Banks, New York, N.Y. (Desiree Sheridan of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel; Gamaliel Marrero on the brief), for respondent.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, ANITA R. FLORIO, and THOMAS A. DICKERSON, JJ.

[90 A.D.3d 629] Appeal by the defendant from an order of the Supreme Court, Kings County (Marrus, J.), dated June 26, 2009, which, after a hearing, designated him a level three sex offender, a sexually violent offender, and a predicate 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 (hereinafter SORA) ( see Correction Law art. 6–C) to “render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based.” The Supreme Court here 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. Lashway, 66 A.D.3d 662, 662, 885 N.Y.S.2d 628; People v. Guitard, 57 A.D.3d 751, 751, 871 N.Y.S.2d 205).

In establishing a defendant's risk level pursuant to SORA, the People bear the burden of establishing the facts supporting the determinations sought by clear and convincing evidence ( see Correction Law § 168–n[3]; see also Sex Offender Registration Act: Risk Assessment Guidelines

[934 N.Y.S.2d 447]

and Commentary, at 5 [2006 ed.]; People v. Hewitt, 73 A.D.3d 880, 900 N.Y.S.2d 438; People v. Chambers, 66 A.D.3d 748, 748, 887 N.Y.S.2d 220; People v. Bright, 63 A.D.3d 1133, 1134, 883 N.Y.S.2d 79; People v. Hardy, 42 A.D.3d 487, 841 N.Y.S.2d 117). In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders (hereinafter the Board), or any other reliable source, including reliable...