| People v Best |
| 2007 NY Slip Op 09006 [45 AD3d 657] |
| November 13, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Hillary Best, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Laura T. Ross of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Kohm, J.),dated January 31, 2005, which, after a hearing to redetermine the defendant's sex offender risklevel pursuant to the stipulation of settlement in Doe v Pataki (3 F Supp 2d 456 [1998]),designated him a level three sex offender pursuant to Correction Law article 6-C.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the Supreme Court, Queens County, for a new hearing and determination.
Pursuant to the stipulation of settlement in Doe v Pataki (3 F Supp 2d 456 [1998])(hereinafter the Pataki stipulation) the defendant was afforded a hearing on his sexoffender status, based upon a new risk assessment instrument (see People v Grosfeld, 35 AD3d692 [2006]). Paragraph 10 of the Pataki stipulation provides, in pertinent part:"Applying the guidelines established under Correction Law § 168-l (5), the DistrictAttorney will prepare a new Risk Assessment instrument . . . and provide[ ] copiesto the court, [defendant] and [defendant's] counsel at least thirty days (30) before the hearing."The pro se defendant and the court did not receive the new risk assessment instrument until theday of the hearing, in violation of paragraph 10 of the Pataki stipulation. The defendantobjected to this procedure, stating that he was "not prepared to be able to put in a response."[*2]
The defendant asserted, inter alia, that he had nodocumentation for his prior New Jersey conviction and believed "there was an appeal andmodification" of that judgment of conviction. Based upon the New Jersey conviction, he wasassessed a total of 40 points for committing a violent felony less than three years prior to the sexoffense committed in New York. It is unclear from this record whether the New Jersey crimeoccurred before February 18, 1976, when the sex offense was committed (see People v Best,73 AD2d 651 [1979]). Therefore, it cannot be determined whether the defendant wasproperly assessed points for his "criminal history" prior to the sex offense based upon the NewJersey conviction (see Sex Offender Registration Act, Risk Assessment Guidelines andCommentary, p 14 [2006]; see generallyPeople v Villane, 17 AD3d 336, 337 [2005]).
Under the circumstances of this case, the violation of the Pataki stipulation cannot bedeemed harmless. Accordingly, we reverse the order appealed from, and remit the matter to theSupreme Court, Queens County, for a new hearing and determination.
The defendant's remaining contention need not be addressed in light of our determination.Spolzino, J.P., Krausman, Goldstein and Dickerson, JJ., concur.