| People v Damato |
| 2009 NY Slip Op 00516 [58 AD3d 819] |
| January 27, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ralph Damato, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Braslow, J.),dated July 25, 2007, which, without a hearing, in effect, granted the motion of the People of theState of New York for an upward modification of his risk level, and designated him a level threesex offender pursuant to Correction Law article 6-C.
Ordered that the order is reversed, on the law, without costs or disbursements, the motion foran upward modification of the defendant's risk level is denied, and the defendant is designated alevel one sex offender.
In 2005, the defendant was convicted of sexual misconduct and sentenced to a six-year termof probation. Upon the recommendation of the People of the State of New York (hereinafter thePeople), the sentencing court designated the defendant a level one sex offender pursuant to theSex Offender Registration Act (hereinafter SORA) (see Correction Law § 168-d[3]).
In 2007 the Suffolk County Department of Probation, alleging that the defendant violatedcertain conditions of probation, commenced a violation of probation proceeding against thedefendant. Subsequently, the defendant admitted all of the allegations in the petition. Based onthose admissions, the sentencing court revoked the defendant's probation, and sentenced thedefendant to a term of imprisonment of one year.
Soon thereafter, the People moved for an upward modification of the defendant's risk level.In [*2]support of their motion, the People noted that after thedefendant's initial risk level determination, he was found to have violated certain conditions ofprobation. The People asserted that based on the conduct underlying the sex offense, as well asthe conduct underlying the violation of probation, the court should assess a particular amount ofpoints for certain risk factors that would result in the defendant being designated a level threesex offender.
In the order appealed from, the court, without a hearing, assessed all the points that thePeople sought to have the court assess, in effect, granted the People's motion, and designated thedefendant a level three sex offender. We reverse.
Correction Law § 168-o (3) and (4) set forth a specific procedure that thePeople and the court must follow when the People seek an upward modification of a sexoffender's risk level. The People, as well as the court, failed to follow that procedure innumerous respects. For example, the People, who are required to file a petition that "set[s] forththe level of notification sought, together with the reasons for seeking such determination"(Correction Law § 168-o [3]), did not file a petition, but rather, made a motion. Inaddition, the court, which is required to "forward a copy of the petition" that the People filed tothe Board of Examiners of Sex Offenders (hereinafter the Board) for a "recommendationpertaining to the sex offender" (Correction Law § 168-o [4]), never sought theBoard's involvement in the matter. Furthermore, although Correction Law § 168-o(4) indicates that the court is required to conduct a hearing on the petition at which the sexoffender may submit relevant materials and evidence, the court failed to conduct such a hearing.
Under these circumstances, the order appealed from must be reversed, the People's motionmust be denied, and the defendant must be designated a level one sex offender. However, ourdetermination is without prejudice to the People seeking an upward modification of thedefendant's risk level by filing a petition pursuant to Correction Law § 168-o (3)for that relief.
The defendant's remaining contentions are without merit or have been rendered academic inlight of our determination. Mastro, J.P., Florio, Balkin and Eng, JJ., concur.