| People v Judson |
| 2008 NY Slip Op 02943 [50 AD3d 1242] |
| April 3, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v David E.Judson, Appellant. |
—[*1] Gerald A. Keene, District Attorney, Owego, for respondent.
Kane, J. Appeal from an order of the County Court of Tioga County (Sgueglia, J.), enteredSeptember 10, 2004, which classified defendant as a risk three sex offender pursuant to the SexOffender Registration Act.
The facts of this case are set forth in this Court's prior decision where we withheld decisionand assigned new appellate counsel (39 AD3d 946 [2007]). Essentially, defendant is appealinghis sex offender risk level classification.
Initially, as County Court failed to issue an order setting forth its findings of fact andconclusions of law as required by Correction Law § 168-n (3), we must reverse and remitfor compliance with that statute (seePeople v Torchia, 39 AD3d 1137, 1138 [2007]; People v Miranda, 24 AD3d 909, 911 [2005]).
Additionally, we agree with defendant's contention that the record does not contain adequateevidence to support a finding that he engaged in a continuing course of sexual misconduct. Pointsfor a continuing course of sexual misconduct may be assessed where there is proof that theoffender engaged in multiple sexual acts with the same victim over specified time periods(see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 10[2006]). Although the People contend that the case summary supports assigning points to thisrisk factor, the case summary alone is not sufficient to satisfy the People's burden of proving therisk level assessment by clear and convincing evidence where, as here, defendant contested thefactual [*2]allegations related to this risk factor (see People v Joslyn, 27 AD3d1033, 1034 [2006]; People vHill, 17 AD3d 715, 716 [2005]; see also Correction Law § 168-n [3]).Because defendant contested factual assertions in the case summary, County Court was requiredto hold a hearing on this contested issue, at which the People are permitted to present evidenceconcerning this factor (see Correction Law § 168-n [3]).
Mercure, J.P., Peters, Rose and Malone Jr., JJ., concur. Ordered that the order is reversed, onthe law, without costs, and matter remitted to the County Court of Tioga County for furtherproceedings not inconsistent with this Court's decision.