People v. Cullen

53 A.D.3d 1105, 862 N.Y.S.2d 684

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 3, 2008
• Status: Published

Opinion

Appeal from an order of the Cayuga County Court (Thomas G. Leone, J.), entered August 10, 2007. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

It is hereby ordered that the case is held, the decision is reserved and the matter is remitted to Cayuga County Court for further proceedings in accordance with the following memorandum: Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). We agree with defendant that County Court failed to comply with Correction Law § 168-n (3), pursuant to which the court was required to set forth the findings of fact and conclusions of law upon which it based its determination. The statement of the court that it was adopting the recommendations of the Board of Examiners of Sex Offenders, without further explanation, was insufficient to meet that requirement (see People v Marr, 20 AD3d 692 [2005]; see also People v Miranda, 24 AD3d 909, 911 [2005]). On the record before us, we are unable to review whether the court properly determined defendant’s risk level by considering, inter alia, evidence concerning defendant’s health problems that would impact on whether defendant “suffers from a physical condition that minimizes his risk of reoffense” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 5 [2006]). We therefore hold the case, reserve decision and remit the matter to County Court for compliance with the statute (see People v Terrill, 17 AD3d 1045 [2005]). Present—Scudder, P.J., Centra, Fahey, Peradotto and Pine, JJ.