People v. Farchione

27 A.D.3d 1166, 810 N.Y.S.2d 726

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 2006
• Status: Published

Opinion

Appeal from an order of the Monroe County Court (Frank E Geraci, Jr., J), entered June 8, 2005. The order determined that defendant is a level two risk pursuant to the Sex Offender Registration Act.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the matter is remitted to Monroe County Court for further proceedings in accordance with the following memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). As the People correctly concede, they failed to comply with the notice provisions of Correction Law § 168-d (3) inasmuch as they failed to provide County Court and defendant with the requisite written statement indicating, inter alia, that they were seeking an upward departure from the level one risk assessment recommended in the presentence report (see People v Davila, 299 AD2d 573 [2002]). We therefore reverse the order and remit the matter to County Court for further proceedings consistent with our decision herein before a different judge. Present—Pigott, Jr., P.J., Scudder, Kehoe, Smith and Fine, JJ.