PEOPLE v. WILSON (2025)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about November 16, 2022, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

Correction Law § 168–n (3) requires a court making a risk level determination pursuant to the Sex Offender Registration Act to “render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based.”  Here, the court 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. Carvente, 233 A.D.3d 491, 491, 221 N.Y.S.3d 116 [1st Dept. 2024];  People v. Eaton, 105 A.D.3d 722, 963 N.Y.S.2d 271 [2d Dept. 2013]).

The record does not support an assessment of points under the risk factor for a history of drug or alcohol abuse.  While defendant had reported to probation officials that he had used marijuana since he was 15, it did not support a finding that defendant had a history of substance abuse that would increase his risk of reoffending (see generally People v. Palmer, 20 N.Y.3d 373, 378–379, 960 N.Y.S.2d 719, 984 N.E.2d 917 [2013]).  In any event, while we find that defendant should not have been assessed points on this risk factor, a reduction of 15 points does not alter defendant's presumptive risk level two designation (see People v. Brown, 122 A.D.3d 536, 997 N.Y.S.2d 395 [1st Dept. 2014], lv denied 24 N.Y.3d 915, 2015 WL 649315 [2015]).

Regardless of whether defendant's correct point score is 80 or 95, the court providently exercised its discretion in declining to grant a downward departure, since any mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).