PEOPLE v. CARVENTE (2024)

Order, Supreme Court, New York County (Ruth Pickholz, J.), entered on or about May 20, 2022, which adjudicated defendant a level two sex offender pursuant to Sex Offender Registration Act (SORA) (Correction Law art 6–C), unanimously affirmed, without costs.

Although Supreme Court did not adequately set forth its findings of fact and conclusions of law, based on the record, defendant was properly assessed 15 points under factor 14 of the risk assessment instrument (see People v. Palmer, 20 N.Y.3d 373, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013]).  The Executive Office of Immigration Review printout indicating that defendant had been ordered removed from the United States was reliable hearsay establishing, by clear and convincing evidence, that he would be unsupervised at the time of his release (see People v. Avendano, 222 A.D.3d 667, 668, 202 N.Y.S.3d 203 [2d Dept. 2023], lv denied 41 N.Y.3d 908, 2024 WL 2334020 [2024];  see generally People v. Mingo, 12 N.Y.3d 563, 571–572, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009]).  We call attention to Correction Law § 168–n(3), which requires the setting forth of findings of fact and conclusions of law for assessment of points under SORA.

The court providently exercised its discretion in denying defendant's request for a downward departure.  The seriousness of defendant's underlying conduct against a young child over the course of several years, when she was four to nine years old, justified the level two sex offender adjudication (see People v. Tugwell, 210 A.D.3d 507, 507, 176 N.Y.S.3d 490 [1st Dept. 2022], lv denied 39 N.Y.3d 911, 2023 WL 3066592 [2023];  People v. Funez, 201 A.D.3d 574, 157 N.Y.S.3d 709 [1st Dept. 2022], lv denied 38 N.Y.3d 907, 2022 WL 1573318 [2022]).  The mitigating factors presented by defendant were adequately taken into account by the risk assessment instrument (see generally People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).