People v Kennedy

2010 NY Slip Op 09423 [79 AD3d 1470]

December 23, 2010

Appellate Division, Third Department

As corrected through Wednesday, February 16, 2011

The People of the State of New York, Respondent, v Douglas A.Kennedy, Appellant.

—[*1]Rebecca L. Fox, Schuyler Falls, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.

Mercure, J.P. Appeal from an order of the County Court of Clinton County (McGill, J.), enteredOctober 9, 2009, which classified defendant as a risk level three sex offender pursuant to the SexOffender Registration Act.

Defendant pleaded guilty to, among other things, two counts of criminal sexual act in the seconddegree and was sentenced to a prison term of 21/3 to 7 years. In anticipation of hisrelease from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrumentthat presumptively classified defendant as a risk level three sex offender. At the hearing that followed,defendant sought a downward modification based upon, among other things, a specializedpsychological evaluation submitted on his behalf. County Court denied defendant's request andclassified him as a risk level three sex offender, prompting this appeal.

County Court failed to issue an order setting forth its findings of fact and conclusions of law asrequired by Correction Law § 168-n (3), and its execution of the standardized form designatingdefendant's risk level classification did not discharge its duty under the statute (see People v Marr, 20 AD3d 692, 693[2005]). While we have found the statutory mandate to have been satisfied where the classifying courtmade detailed oral findings on the record (seee.g. People v Roberts, 54 AD3d 1106, 1106-1107 [2008], lv denied 11 NY3d 713[2008]; People v Joslyn, 27 AD3d1033, 1035 [2006]), County Court here made no oral or written findings, [*2]thereby precluding meaningful appellate review of defendant'sclassification as a risk level three sex offender (see People v Torchia, 39 AD3d 1137, 1138 [2007]; People v Sass, 27 AD3d 968, 969[2006]; People v Sanchez, 20 AD3d693, 695 [2005]; People v Hill, 17AD3d 715, 716 [2005]). Accordingly, we reverse and remit this matter to County Court for adisposition in compliance with the statutory requirements.

Peters, Rose, Malone Jr. and Garry, JJ., concur. Ordered that the order is reversed, on the law,without costs, and matter remitted to the County Court of Clinton County for further proceedings notinconsistent with this Court's decision.