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cited 2× by 2 distinct cases, 2011–2012 ·
…render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based.
at p. 751
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Top citers, strongest first. 27 distinct citers.
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discussed
Cited as authority (rule)
People v. Brown
In view of the foregoing, we find that the assessment of 15 points to defendant's score for risk factor 11 is not supported by clear and convincing evidence ( see People v Saunders , 156 AD3d at 1140 ; People v Davis , 135 AD3d 1256, 1256 [2016], lv denied 27 NY3d 904 [2016]; People v Ross , 116 AD3d at 1172 ; cf. People v Newman , 148 AD3d 1600, 1601 [2017], lv denied 29 NY3d 914 [2017]; People v Jamison , 127 AD3d 947, 947 [2015], lv denied 26 NY3d 901 [2015]; People v Tumminia , 112 AD3d 1002 , 1003 [2013], lv denied 22 NY3d 864 [2014]; People v Guitard , 57 AD3d 751, 752 [2008], lv denied …
discussed
Cited as authority (rule)
People v. Brown
In view of the foregoing, we find that the assessment of 15 points to defendant's score for risk factor 11 is not supported by clear and convincing evidence ( see People v Saunders , 156 AD3d at 1140 ; People v Davis , 135 AD3d 1256, 1256 [2016], lv denied 27 NY3d 904 [2016]; People v Ross , 116 AD3d at 1172 ; cf. People v Newman , 148 AD3d 1600, 1601 [2017], lv denied 29 NY3d 914 [2017]; People v Jamison , 127 AD3d 947, 947 [2015], lv denied 26 NY3d 901 [2015]; People v Tumminia , 112 AD3d 1002 , 1003 [2013], lv denied 22 NY3d 864 [2014]; People v Guitard , 57 AD3d 751, 752 [2008], lv denied …
discussed
Cited as authority (rule)
People v. Corbett (Vernon)
The court found that defendant was presumptively a level three sex offender pursuant to an automatic override as a result of the prior [*2] felony conviction ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3-4 [2006]; People v Champagne , 140 AD3d 719 [2016]; People v Guitard , 57 AD3d 751, 752 [2008]; People v Patterson , 51 AD3d 750 [2008]).
discussed
Cited as authority (rule)
People v. Champagne
Here, the People established by clear and convincing evidence the applicability of the first override, based on the defendant’s prior felony sex offense conviction (see People v Guitard, 57 AD3d 751, 752 [2008]; People v Patterson, 51 AD3d 750 [2008]), as well as the fourth override, based on the defendant’s diagnosis of pedophilia (see People v Lagville, 136 AD3d at 1006 ; People v Long, 129 AD3d 687 [2015]). “ ‘The risk level calculated from aggregating the . . . overrides is “presumptive” because the Board or court may depart from it if special circumstances warrant.
discussed
Cited as authority (rule)
People v. Hemmes
Despite this error, remittal is unnecessary where the court makes oral findings and conclusions that “are clear, supported by the record and sufficiently detailed to permit intelligent review” (People v Carter, 106 AD3d 1202, 1203 [2013]), or the record is sufficient for this Court to make its own factual findings and conclusions (see People v Urbanski, 74 AD3d 1882, 1883 [2010], lv denied 15 NY3d 707 [2010]; People v Guitard, 57 AD3d 751, 751 [2008], lv denied 12 NY3d 704 [2009]).
discussed
Cited as authority (rule)
People v. Hemmes
Despite this error, remittal is unnecessary where the court makes oral findings and conclusions that “are clear, supported by the record and sufficiently detailed to permit intelligent review” (People v Carter, 106 AD3d 1202, 1203 [2013]), or the record is sufficient for this Court to make its own factual findings and conclusions (see People v Urbanski, 74 AD3d 1882, 1883 [2010], lv denied 15 NY3d 707 [2010]; People v Guitard, 57 AD3d 751, 751 [2008], lv denied 12 NY3d 704 [2009]).
discussed
Cited as authority (rule)
People v. Grubbs
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 Lacewell, 103 AD3d 784 [2013], lv denied 21 NY3d 856 [2013]; People v Finizio, 100 AD3d 977, 977 [2012]; People v Thompson, 95 AD3d 977, 977 [2012]; People v Harris, 93 AD3d 704, 704 [2012]; People v Crandall, 90 AD3d 628, 629 [2011]; People v Lashway, 66 AD3d 662 , 662 [2009]; People v Guitard, 57 AD3d 751, 751 [2008]). “ ‘In establishing a defendant’s risk level pursuant to SORA, the People bear the burden of establishing, by clear and c…
discussed
Cited as authority (rule)
People v. Grubbs
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 Lacewell, 103 AD3d 784 [2013], lv denied 21 NY3d 856 [2013]; People v Finizio, 100 AD3d 977, 977 [2012]; People v Thompson, 95 AD3d 977, 977 [2012]; People v Harris, 93 AD3d 704, 704 [2012]; People v Crandall, 90 AD3d 628, 629 [2011]; People v Lashway, 66 AD3d 662 , 662 [2009]; People v Guitard, 57 AD3d 751, 751 [2008]). “ ‘In establishing a defendant’s risk level pursuant to SORA, the People bear the burden of establishing, by clear and c…
discussed
Cited as authority (rule)
People v. Lacewell
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 Finizio, 100 AD3d 977 [2012]; People v Thompson, 95 AD3d 977, 977 [2012]; People v Harris, 93 AD3d 704, 704 [2012]; People v Crandall, 90 AD3d 628, 629 [2011]; People v Lashway, 66 AD3d 662 , 662 [2009]; People v Guitard, 57 AD3d 751, 751 [2008]).
discussed
Cited as authority (rule)
People v. Lacewell
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 Finizio, 100 AD3d 977 [2012]; People v Thompson, 95 AD3d 977, 977 [2012]; People v Harris, 93 AD3d 704, 704 [2012]; People v Crandall, 90 AD3d 628, 629 [2011]; People v Lashway, 66 AD3d 662 , 662 [2009]; People v Guitard, 57 AD3d 751, 751 [2008]).
discussed
Cited as authority (rule)
People v. Boykin
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 Finizio, 100 AD3d 977 [2012]; People v Harris, 93 AD3d 704, 704 [2012]; People v Guitard, 57 AD3d 751, 751 [2008]; People v Banks, 48 AD3d 656, 656 [2008]).
discussed
Cited as authority (rule)
People v. Boykin
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 Finizio, 100 AD3d 977 [2012]; People v Harris, 93 AD3d 704, 704 [2012]; People v Guitard, 57 AD3d 751, 751 [2008]; People v Banks, 48 AD3d 656, 656 [2008]).
discussed
Cited as authority (rule)
People v. Finizio
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 Harris, 93 AD3d 704, 704 [2012]; People v Crandall, 90 AD3d 628, 629 [2011]; People v Lashway, 66 AD3d 662 , 662 [2009]; People v Guitard, 57 AD3d 751, 751 [2008]).
discussed
Cited as authority (rule)
People v. Finizio
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 Harris, 93 AD3d 704, 704 [2012]; People v Crandall, 90 AD3d 628, 629 [2011]; People v Lashway, 66 AD3d 662 , 662 [2009]; People v Guitard, 57 AD3d 751, 751 [2008]).
discussed
Cited as authority (rule)
People v. Harris
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 Thompson, 95 AD3d 977, 977 [2012], lv denied 19 NY3d 811 [2012]; People v Harris, 93 AD3d 704, 704 [2012]; People v Crandall, 90 AD3d 628, 629 [2011]; People v Lashway, 66 AD3d 662 , 662 [2009]; People v Guitard, 57 AD3d 751, 751 [2008]).
discussed
Cited as authority (rule)
People v. Harris
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 Thompson, 95 AD3d 977, 977 [2012], lv denied 19 NY3d 811 [2012]; People v Harris, 93 AD3d 704, 704 [2012]; People v Crandall, 90 AD3d 628, 629 [2011]; People v Lashway, 66 AD3d 662 , 662 [2009]; People v Guitard, 57 AD3d 751, 751 [2008]).
discussed
Cited as authority (rule)
People v. Thompson
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 Lashway, 66 AD3d 662 , 662 [2009]; People v Guitard, 57 AD3d 751, 751 [2008]).
discussed
Cited as authority (rule)
People v. Harris
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 Lashway, 66 AD3d 662 , 662 [2009]; People v Guitard, 57 AD3d 751, 751 [2008]).
discussed
Cited as authority (rule)
People v. Suber
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 Lashway, 66 AD3d 662 , 662 [2009]; People v Guitard, 57 AD3d 751, 751 [2008]).
discussed
Cited as authority (rule)
People v. Palmer
Therefore, he was presumptively a level three sexually violent offender pursuant to an automatic override addressing prior felony convictions for sex crimes, irrespective of the points scored on the risk assessment instrument (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 3-4 [2006]; People v Carter, 85 AD3d 995 [2011]; People v Guitard, 57 AD3d 751, 752 [2008]).
discussed
Cited as authority (rule)
People v. Deturris
(2×)
also: Cited "see, e.g."
Contrary to the defendant’s contention, the County Court properly assessed 15 points, under risk factor 11, for a history of drug abuse (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15 [2006]; People v Guitard, 57 AD3d 751, 752 [2008]).
discussed
Cited as authority (rule)
People v. Crandall
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 Lashway, 66 AD3d 662 , 662 [2009]; People v Guitard, 57 AD3d 751, 751 [2008]).
discussed
Cited as authority (rule)
People v. Carter
Therefore, he was presumptively a level three sex offender pursuant to an automatic override addressing prior felony convictions for sex crimes (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 3-4 [2006]; People v Fareira, 80 AD3d 589, 590 [2011]; People v King, 74 AD3d 1162, 1163 [2010]; People v Guitard, 57 AD3d 751, 752 [2008]; People v Winney, 43 AD3d 1239 [2007]).
discussed
Cited as authority (rule)
People v. Harris
Contrary to the defendant’s contention, the County Court properly assessed 15 points, under risk factor 11, for a history of drug abuse (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15 [2006]; People v Guitard, 57 AD3d 751, 752 [2008]).
cited
Cited as authority (rule)
People v. Rivera
That predicate felony sex offense warranted an automatic override to a presumptive level three risk assessment (see People v Guitard, 57 AD3d 751, 752 [2008]).
discussed
Cited "see"
People v. Lashway
The failure of the County Court to “render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based” (Correction Law § 168-n [3]; see People v Smith, 11 NY3d 797 [2008]) does not preclude this Court from making its own findings of fact and conclusions of law where, as here, the record is sufficient to do so (see People v Guitard, 57 AD3d 751 [2008]; People v Villane, 17 AD3d 336 [2005]).
discussed
Cited "see, e.g."
People v. Carlton
Those facts constitute clear and convincing evidence of defendant’s history of drug and alcohol abuse, thus justifying the assessment of 25 points with respect to that risk factor (see Urbanski, 74 AD3d 1882, 1883 ; see also People v Guitard, 57 AD3d 751 [2008], lv denied 12 NY3d 704 [2009]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Eric Guitard
v.
Eric Guitard
Appellate Division of the Supreme Court of the State of New York.
Dec 16, 2008.
Cited by 37 opinions | Published
The Supreme Court failed to sufficiently set forth its findings of fact and conclusions of law, as mandated by Correction Law § 168-n (3). However, remittal is not required since the record in this case is sufficient for this Court to make its own findings of fact and conclusions of law (see People v Banks, 48 AD3d 656 [2008]; People v Penson, 38 AD3d 866, 867 [2007]).
The defendant’s contention that the Supreme Court denied him due process by using the Risk Assessment Instrument prepared by the Board of Examiners of Sex Offenders (hereinafter the Board) in determining his risk level is without merit (see People v Flowers, 35 AD3d 690, 690-691 [2006]; People v Windham, 37 AD3d 571 [2007], affd 10 NY3d 801 [2008]; People v Bligen, 33 AD3d 489, 489-490 [2006]).
[*752] The only factual challenge advanced by the defendant with regard to the scoring of the factors on the risk assessment instrument was addressed to the assessment of points for a history of drug abuse. Contrary to the defendant’s claim, there need not be a showing of use of drugs at the time of the offense to warrant the assessment of points for a history of drug abuse (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15 [2006]). The defendant’s admission to the daily use of marijuana since the age of 16 provided a sufficient basis for the assessment of 15 points.
There was clear and convincing evidence presented at the hearing of the facts necessary to sustain the assessment of all of the 130 points recommended by the Board, and the designation of the defendant as a level three sex offender based on that score (see People v Garcia, 56 AD3d 539 [2008]; People v Pardo, 50 AD3d 992 [2008]; People v Turner, 45 AD3d 747 [2007]; People v Hines, 24 AD3d 524 [2005]).
There also was clear and convincing evidence presented that the defendant was previously convicted of a felony sex offense. That predicate felony sex offense warranted an automatic override to a level three risk assessment, irrespective of the points scored on the risk assessment instrument. To the extent the defendant sought a downward departure from the level three determination resulting from the automatic override, or the numerical scoring, the defendant failed to present clear and convincing evidence of the existence of special circumstances to warrant a downward departure (see People v Bowens, 55 AD3d 809 [2008]; People v Patterson, 51 AD3d 750 [2008]; People v Pardo, 50 AD3d 992 [2008]; People v Foy, 49 AD3d 835 [2008]; People v Melendez, 33 AD3d 903 [2006]).
The defendant’s remaining contention is without merit. Rivera, J.E, Angiolillo, Eng and Belen, JJ., concur.