        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

813
KA 12-01270
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RUSSELL YOUNG, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Onondaga County Court (Anthony F.
Aloi, J.), entered April 16, 2012. The order determined that
defendant is a level two risk pursuant to the Sex Offender
Registration Act.

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

     Memorandum: Defendant appeals from an order determining that he
is a level two risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). Defendant failed to preserve
for our review his contention that he was ineligible to be designated
a sexually violent offender (see People v Windham, 10 NY3d 801, 802;
People v Cullen, 79 AD3d 1677, 1677-1678, lv denied 16 NY3d 709).
Defendant did not present an adequate record to permit review of his
contention that he was deprived of due process as a result of being
denied access to documents relevant to his conviction of child
molestation in the first degree in Washington State, on which County
Court relied in its written decision and order determining defendant
to be a level two risk (see Palermo v Taccone, 79 AD3d 1616, 1620; de
Vries v Metropolitan Tr. Auth., 11 AD3d 312, 312-313). In any event,
we note that the court also relied on the case summary in determining
defendant to be a level two risk. “The case summary may constitute
clear and convincing evidence of the facts alleged therein and, where,
as here, the defendant does not dispute the facts contained in the
case summary, the case summary alone is sufficient to support the
court’s determination” (People v Guzman, 96 AD3d 1441, 1441-1442, lv
denied 19 NY3d 812). Defendant’s further contention that he was
denied effective assistance of counsel lacks merit. Although “[a] sex
offender facing risk level classification under SORA has a right to .
. . effective assistance of counsel” (People v Willingham, 101 AD3d
979, 979), we conclude that, viewing the evidence, the law and the
                                 -2-                           813
                                                         KA 12-01270

circumstances of this case in totality and at the time of
representation, defendant received effective assistance of counsel
(see generally People v Baldi, 54 NY2d 137, 147).

     Defendant contends that reversal is required because the court
failed to set forth its findings of fact and conclusions of law with
respect to its determination that defendant is a level two risk, as
required by Correction Law § 168-n (3). We reject that contention;
rather, we conclude that the court’s findings of fact rendered in
conjunction with its oral decision “ ‘are clear, supported by the
record and sufficiently detailed to permit intelligent appellate
review’ ” (People v Smith, 75 AD3d 1112, 1112). Moreover, even if the
court failed to set forth its findings of fact and conclusions of law,
remittal is unnecessary where, as here, the record is sufficient to
enable us to make our own findings of fact and conclusions of law (see
People v Urbanski, 74 AD3d 1882, 1883, lv denied 15 NY3d 707). We
also reject defendant’s contention that the court erred in assessing
him 20 points under risk factor 4 (see People v Di John, 48 AD3d 1302,
1303; see generally People v Pettigrew, 14 NY3d 406, 408-409). Here,
the case summary indicates that defendant digitally penetrated the
victim on three separate occasions between March 1992 and May 1992
(see Sex Offender Registration Act: Risk Assessment Guidelines and
Commentary at 10 [2006]; see also Di John, 48 AD3d at 1303).
Defendant did not preserve for our review his contention that the
court erred in assessing 15 points under risk factor 12 (see Cullen,
79 AD3d at 1677) and, in any event, that contention lacks merit
inasmuch as the case summary indicates that defendant denied molesting
his victim and declined sex offender treatment (see generally People v
Hurlburt-Anderson, 46 AD3d 1437, 1437). Defendant’s further
contention that the court erred in assessing 10 points under risk
factor 13 is likewise without merit inasmuch as the case summary
indicates that defendant was charged with a probation violation five
days after his release from incarceration and was subsequently
convicted of additional criminal activity (cf. People v Neuer, 86 AD3d
926, 927, lv denied 17 NY3d 716). Finally, we conclude that
“defendant failed to present clear and convincing evidence of special
circumstances justifying a downward departure” of his risk level
(People v McDaniel, 27 AD3d 1158, 1159, lv denied 7 NY3d 703).




Entered:   July 19, 2013                        Frances E. Cafarell
                                                Clerk of the Court
