People v Cullen

2008 NY Slip Op 06072

Decided on July 3, 2008

Appellate Division, Fourth Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 3, 2008


PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND PINE, JJ.
932 KA 07-01686




Appeal from an order of the Cayuga County Court (Thomas G. Leone, J.), entered August 10, 2007. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.


CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHARLES M. THOMAS OF COUNSEL), FOR RESPONDENT.


It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Cayuga County Court for further proceedings in accordance with the following Memorandum: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). We agree with defendant that County Court failed to comply with Correction Law § 168-n (3), pursuant to which the court was required to set forth the findings of fact and conclusions of law upon which it based its determination. The statement of the court that it was adopting the recommendations of the Board of Examiners of Sex Offenders, without further explanation, was insufficient to meet that requirement (see People v Marr, 20 AD3d 692; see also People v Miranda, 24 AD3d 909, 911). On the record before us, we are unable to review whether the court properly determined defendant's risk level by considering, inter alia, evidence concerning defendant's health problems that would impact on whether defendant "suffers from a physical condition that minimizes his risk of reoffense" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 5 [2006]). We therefore hold the case, reserve decision and remit the matter to County Court for compliance with the statute (see People v Terrill, 17 AD3d 1045).
Entered: July 3, 2008
JoAnn M. Wahl
Clerk of the Court