| People v Crowley |
| 2009 NY Slip Op 05707 [64 AD3d 918] |
| July 9, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DanielCrowley, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy, for respondent.
Spain, J. Appeal from an order of the County Court of Rensselaer County (Jacon, J.), enteredMarch 12, 2008, which classified defendant as a risk level two sex offender pursuant to the SexOffender Registration Act.
In 2003 defendant, then 38 years old, engaged in sexual intercourse with a then 17-year-oldfemale and, based upon the stated age difference, was convicted of a felony sex crime in Florida.Because defendant was required to register as a sex offender in Florida, his subsequentrelocation to this state required that he register here as well (see Correction Law §168-a [1], [2] [d] [ii]). The Board of Examiners of Sex Offenders prepared a risk assessmentinstrument presumptively classifying defendant as a risk level two sex offender. However, theBoard opined that he presented a low risk to reoffend, concluding that the conduct for which hewas convicted in Florida would not constitute a crime in this state based upon the age differencealone. The Board also reasoned that while "there was some evidence of coercion, there did notappear to be any force," and recommended a downward departure to a risk level one sexoffender. The People submitted a letter opposing the Board's recommended downward departure,but did not comply with the statutory mandate that they send "the court and the sex offender astatement setting forth . . . the reasons for seeking such determination[ ]"(Correction Law § 168-n [3] [emphasis added]). Following a hearing, County Courtrejected the Board's recommendation and classified [*2]defendant as a risk level two sex offender. This appeal bydefendant ensued.
At the hearing, the People urged County Court to adhere to the presumptive risk level twodesignation, arguing that while defendant's conduct would not have constituted a crime in thisstate based upon age difference alone, the victim's account of the incident supported a findingthat it was nonconsensual, i.e., committed with some force. The People noted that defendant hadnot been scored under risk factor one for use of forcible compulsion. Defendant advocated infavor of the Board's recommendation for a downward departure and submitted a letter from thevictim's uncle indicating that the sexual contact had been consensual. Defendant did notchallenge the designation of points in the risk assessment instrument. The court, indicating itsbelief that defendant would reoffend if he were drunk again in view of his history of drug andalcohol abuse (for which he received 15 points under risk factor 11), offered defendant anopportunity to adjourn the hearing and obtain a drug and alcohol evaluation. Defendant refused.The court then designated defendant as a risk level two sex offender finding that—basedupon his refusal to address his substance abuse history—his risk of reoffending was"moderate," not "low" as the Board had concluded.
We agree with defendant that County Court's failure to issue a written order setting forth itsfindings of fact and conclusions of law to support the determination, as required (seeCorrection Law § 168-n [3]), precludes meaningful appellate review of defendant'sclassification as a risk level two sex offender (see People v Zayas, 57 AD3d 1179, 1179-1180 [2008]; People v Torchia, 39 AD3d 1137,1138 [2007]). The court's oral findings are not sufficiently detailed to permit such review (cf. People v Roberts, 54 AD3d1106, 1107 [2008], lv denied 11 NY3d 713 [2008]; People v Joslyn, 27 AD3d 1033,1035 [2006]).
The hearing transcript reveals that County Court focused solely upon the fact thatdefendant's history of substance abuse rendered him likely to reoffend. However, the court didnot discuss the Board's stated reason for recommending a downward departure from thepresumptive risk level classification—namely, the argument that defendant's conduct didnot involve force and would not constitute a crime in New York, a factor defendant argued at thehearing. Under these circumstances, this matter must be remitted to County Court (seePeople v Zayas, 57 AD3d at 1180). In light of this conclusion, the parties' remainingarguments are academic.
Peters, J.P., Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the order isreversed, on the law, without costs, and matter remitted to the County Court of RensselaerCounty for further proceedings not inconsistent with this Court's decision.