| People v Johnson |
| 2013 NY Slip Op 01974 [104 AD3d 1321] |
| March 22, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v KevinC. Johnson, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from an order of the Genesee County Court (Robert C. Noonan, J.), enteredFebruary 6, 2012. The order determined that defendant is a level three risk pursuant tothe Sex Offender Registration Act.
It is hereby ordered that the order so appealed from is unanimously modified on thelaw by determining that defendant is a level two risk pursuant to the Sex OffenderRegistration Act and as modified the order is affirmed without costs.
Memorandum: On appeal from an order determining that he is a level three riskunder the Sex Offender Registration Act ([SORA] Correction Law § 168 etseq.), defendant contends that County Court erred in assessing 20 points against himunder risk factor 7, for his relationship with one of the victims. We agree. At the SORAhearing, the People had "the burden of proving the facts supporting the [risk levelclassification] sought by clear and convincing evidence" (§ 168-n [3]; seePeople v Wroten, 286 AD2d 189, 199 [2001], lv denied 97 NY2d 610[2002]). Here, the People failed to meet their burden of establishing that defendant"established or promoted" his relationship with the victim "for the primary purpose ofvictimization" (Sex Offender Registration Act: Risk Assessment Guidelines andCommentary at 12 [2006]; seePeople v Johnson, 93 AD3d 1323, 1324 [2012]). The People presented noevidence that defendant, who met the victim at a party, targeted the victim for theprimary purpose of victimizing her (see Johnson, 93 AD3d at 1324; cf. People v Washington, 91AD3d 1277, 1277 [2012], lv denied 19 NY3d 801 [2012]; People v Jackson, 70 AD3d1385, 1385 [2010], lv denied 14 NY3d 714 [2010]). As a result of thecourt's error, defendant's score on the risk assessment instrument must be reduced by 20points, and thus he should be presumptively classified as a level two risk. We thereforemodify the order accordingly.
We note in any event that we agree with defendant that the court failed to complywith Correction Law § 168-n (3), inasmuch as it failed to set forth the findings offact and conclusions of law upon which it based its determination to assess points underrisk factor 7 (see People vCarlton, 78 AD3d 1654, 1655 [2010], lv denied 16 NY3d 782 [2011];People v Gilbert, 78 AD3d1584, 1584 [2010], lv denied 16 NY3d 704 [2011]). The court merelyrecited its conclusion, i.e., that "[d]efendant established a relationship with [the victim]for the purpose of victimization."[*2]
Finally, we reject the contention of defendant thathe was denied effective assistance of counsel at the SORA hearing (see People v Rotterman, 96AD3d 1467, 1468 [2012], lv denied 19 NY3d 813 [2012]; People v Bowles, 89 AD3d171, 181 [2011], lv denied 18 NY3d 807 [2012]). Present—Smith,J.P., Peradotto, Lindley, Valentino and Whalen, JJ.