| People v Hubel |
| 2010 NY Slip Op 01280 [70 AD3d 1492] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James Hubel,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from an order of the Supreme Court, Erie County (John L. Michalski, A.J.), enteredNovember 20, 2008. The order determined that defendant is a level three risk pursuant to the SexOffender Registration Act.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the matter is remitted to Supreme Court, Erie County, for further proceedingsin accordance with the following memorandum: Defendant appeals from an order determiningthat he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law§ 168 et seq.). Contrary to defendant's contention, we conclude that SupremeCourt properly assessed 25 points against defendant under the risk factor for sexual contact withthe victim. The People met their burden of establishing by clear and convincing evidence thatdefendant engaged in deviate sexual intercourse, i.e., oral sexual contact (see §168-n [3]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 8[Nov. 1997]). We reject defendant's contention that the court erred in relying upon the facts setforth in the case summary in assessing points under that risk factor. It is well settled that "[t]hecase summary constitutes reliable hearsay, which is properly considered by the court indetermining a defendant's risk level" (People v Sanney, 56 AD3d 1220, 1220 [2008]; see People v Vaughn, 26 AD3d776, 777 [2006]). Although "the case summary alone is not sufficient to satisfy the People'sburden of proving the risk level assessment by clear and convincing evidence where. . . defendant contested the factual allegations related to [the] risk factor" inquestion (People v Judson, 50AD3d 1242, 1243 [2008]), here, defendant did not challenge the allegations of oral sexualcontact contained in the case summary. Rather, defendant contended only that the accusatoryinstruments did not include any allegations of oral sexual contact and that he was not convictedof sodomy. In assessing defendant's risk level, however, the court is "not limited to the crime ofconviction" but may also properly consider, inter alia, the victim's statements (Risk AssessmentGuidelines and Commentary, at 5).
We agree with defendant, however, that the court failed to comply with Correction Law§ 168-n (3), pursuant to which the court was required to set forth the findings of fact andconclusions of law upon which it based its decision to grant the People's request for an upwarddeparture to a level [*2]three risk. Here, in its decision the courtmerely recited in conclusory fashion that it reviewed all the relevant information presented bythe parties and accepted the findings contained in the risk assessment instrument and the casesummary, and that recitation was insufficient to fulfill the statutory mandate (see People v Cullen, 53 AD3d1105 [2008]). Inasmuch as the court's failure to set forth the findings of fact and conclusionsof law upon which the court based its decision "preclud[es] meaningful appellate review of thepropriety of the court's risk level assessment" (People v Miranda, 24 AD3d 909, 911 [2005]; see People v Sanchez, 20 AD3d693, 695 [2005]), we reverse the order and remit the matter to Supreme Court forcompliance with the statute (see Peoplev Smith, 11 NY3d 797 [2008]). Present—Centra, J.P., Peradotto, Carni, Pine andGorski, JJ.