PEOPLE v. LEOPOLD (2009)

 Defendant appeals from an order determining that he is a level two risk under the Sex Offender Registration Act (Correction Law § 168 et seq.).   Defendant failed to preserve for our review his present contention that the Board of Examiners of Sex Offenders erred in failing to compare his California offense with New York law (see generally People v. Windham, 10 N.Y.3d 801, 856 N.Y.S.2d 557, 886 N.E.2d 179;  People v. Smith, 17 A.D.3d 1045, 793 N.Y.S.2d 782, lv. denied 5 N.Y.3d 705, 801 N.Y.S.2d 252, 834 N.E.2d 1261).   We agree with defendant that Supreme Court failed to set forth the requisite findings of fact and conclusions of law upon which it based its risk assessment determination (see § 168-n[3] ).   Nevertheless, we conclude that the record before us is sufficient to enable us to make our own findings of fact and conclusions of law (see People v. Pardo, 50 A.D.3d 992, 854 N.Y.S.2d 899, lv. denied 11 N.Y.3d 703, 864 N.Y.S.2d 390, 894 N.E.2d 654), and we conclude that the upward departure determining that defendant is a level two risk is supported by clear and convincing evidence (see People v. Thomas, 307 A.D.2d 759, 762 N.Y.S.2d 548).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: