People v Sterling

People v Sterling 2010 NY Slip Op 01775 [71 AD3d 654] March 2, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

The People of the State of New York, Respondent,
v
Andre Sterling, Appellant.

—[*1] Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and Argun M. Ulgen of counsel), for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Joanna Hershey of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Nassau County (Kase, J.), dated January 19, 2007, which, after a hearing, designated him a sexually violent offender and a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is modified, on the law, by deleting the provision thereof that the appellant was to "be designated a sexually violent offender and"; as so modified, the order is affirmed, without costs or disbursements.

Although the hearing court failed to make written findings of fact and conclusions of law as required by Correction Law § 168-n (3), this Court may make its own findings of fact and conclusions of law where, as here, the record is sufficient to do so (see People v Britt, 66 AD3d 853 [2009], lv denied 13 NY3d 716 [2010]).

Contrary to the defendant's contention, the hearing court's determination to designate the defendant a level three sex offender is supported by clear and convincing evidence (see Correction Law § 168-n [3]; People v Mingo, 12 NY3d 563 [2009]; People v Lewis, 56 AD3d 447 [2008]; People v Warren, 42 AD3d 593 [2007]; People v Dominie, 42 AD3d 589 [2007]). The hearing court properly assessed points for risk factor 1 based on the defendant's and the victim's sworn statements and the defendant's testimony at his plea allocution and sentencing (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 7-8 [2006] [hereinafter Guidelines]). It also properly assessed points for risk factor 7 because he was a stranger to the victim (see Guidelines at 12) and risk factor 11, given his admission that he was using alcohol at the time of the offense (see Guidelines at 15; People v Britt, 66 AD3d 853 [2009]).

However, as the People correctly concede, the Supreme Court erred in designating the defendant a sexually violent offender (see Correction Law § 168-a [3], [7] [b]).

The defendant's remaining contentions are without merit. Mastro, J.P., Florio, Balkin and Leventhal, JJ., concur.