         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1124
KA 10-01144
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CORNELL LONG, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered September 21, 2009. The appeal was held by
this Court by order entered February 18, 2011, decision was reserved
and the matter was remitted to Supreme Court, Erie County, for further
proceedings (81 AD3d 1432). The proceedings were held and completed.

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

     Memorandum: We previously held this case, reserved decision and
remitted the matter to Supreme Court for compliance with Correction
Law § 168-n (3), based on the court’s failure “to set forth the
findings of fact and conclusions of law upon which it based its
determination” (People v Long, 81 AD3d 1432, 1433). We agree with
defendant that, upon remittal, the court failed to set forth its
findings of fact and conclusions of law in an adequate manner, i.e.,
the court failed to note the “evidence upon which” its determination
was based (People v Smith, 11 NY3d 797, 798), and the court was
required to provide more than “a generic listing of factors” (People v
Miranda, 24 AD3d 909, 911). Nevertheless, we conclude that “the
record before us is sufficient to enable us to make our own findings
of fact and conclusions of law, thus rendering [further] remittal
unnecessary” (People v Urbanski, 74 AD3d 1882, 1883, lv denied 15 NY3d
707; see People v Pardo, 50 AD3d 992, lv denied 11 NY3d 703).

     Upon exercising our authority to make findings of fact and
conclusions of law, we conclude that the court properly determined
that defendant is a level two risk under the Sex Offender Registration
Act (Correction Law § 168 et seq.). In the prior appeal, we
determined that the court properly assessed 15 points against
defendant under the risk factor for number and nature of prior crimes
(Long, 81 AD3d at 1433), and we now conclude that, contrary to
                                 -2-                          1124
                                                         KA 10-01144

defendant’s contention, the People met their burden of proving that 15
points should be assessed against him under the risk factor for drug
or alcohol abuse. Because “[a]n assessment of 15 points is warranted
under that risk factor where[, inter alia,] ‘an offender . . . was
abusing drugs and or alcohol at the time of the offense’ ” (People v
McClam, 63 AD3d 1588, 1589, lv denied 13 NY3d 704, quoting Sex
Offender Registration Act: Risk Assessment Guidelines and Commentary,
at 15 [2006]), we conclude that defendant’s admission that he was
drinking alcohol during the 1½-hour period immediately preceding his
offense provides a sufficient basis upon which to assess the points
(see People v Robinson, 55 AD3d 708, 708, lv denied 11 NY3d 713).

     Inasmuch as defendant “does not contest the court’s determination
with respect to any of the other risk factors[,] we therefore do not
address them” (Urbanski, 74 AD3d at 1883). Thus, we conclude that the
remainder of the court’s determination is valid, and that the court
properly determined defendant to be a level two risk.




Entered:   November 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
