People of State of New York, respondent, v. Vassilios Vevgas, appellant. (2011)

Submitted—April 1, 2011

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Nassau County (Calabrese, J.), dated March 5, 2010, 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.

The People met their burden of proving, by clear and convincing evidence, the facts supporting the defendant's adjudication as a level two sex offender (see Correction Law § 168–n[3];  People v. Mingo, 12 NY3d 563, 571).   To the extent that the Supreme Court failed to set forth the findings of fact and conclusions of law upon which its determination was based as required by Correction Law § 168–n(3), remittal is not required because the record in this case is sufficient for this Court to make its own findings of fact and conclusions of law (see People v. King, 74 AD3d 1162, 1162–1163).

Contrary to the defendant's contention, the Supreme Court properly assessed 10 points under risk factor number one for using forcible compulsion against the victim (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary, at 8 [2006 ed.] ) and 25 points under risk factor number two for engaging in oral sexual conduct with the victim (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary, at 9 [2006 ed.];  Penal Law § 130.00[2][a] ).

Moreover, the Supreme Court providently exercised its discretion in denying the defendant's application for a downward departure from his presumptive risk level status (see People v. Dingle, 79 AD3d 834;  People v. Colavito, 73 AD3d 1004, 1005;  People v. Bowens, 55 AD3d 809, 810;  People v. Guaman, 8 AD3d 545).

MASTRO, J.P., RIVERA, AUSTIN and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court