People v. Peters

Appellate Division of the Supreme Court of New York

People v. Peters

27 A.D.3d 784, 809 N.Y.S.2d 680

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 2, 2006

StatusPublished

Cited by3 cases

This text of 27 A.D.3d 784 (People v. Peters) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Peters, 27 A.D.3d 784, 809 N.Y.S.2d 680 (N.Y. Ct. App. 2006).

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Opinion

Crew III, J.P.

Appeal from an order of the County Court of Albany County (Herrick, J.), entered July 13, 2004, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty to two counts of sodomy in the second degree and thereafter was sentenced to concurrent terms of imprisonment. Upon his release, defendant was evaluated and presumptively classified as a risk level II sex offender in accordance with the Sex Offender Registration Act (see Correction Law art 6-C). The Board of Examiners of Sex Offenders, however, recommended that defendant’s classification be elevated to risk level III. Following a hearing, County Court “confirmed” the Board’s recommendation. Defendant now appeals.

We reverse. During the hearing, County Court advised counsel that it was of the opinion that its role was to determine whether the Board’s recommendation was arbitrary or capricious and, apparently, that it did not have the authority to independently establish an appropriate risk level. Indeed, in its decision, County Court referred to its hearing as an “appeal” and ultimately “confirmed” the Board’s “determination.” Quite to the contrary, pursuant to Correction Law § 168-n (1) and (2), County Court is obliged to make the risk level determination after receiving the Board’s recommendation (see People v David W., 95 NY2d 130, 138 [2000]; People v Marr, 20 AD3d 692, 693 [2005]), and the burden is upon the prosecutor to establish the basis for a requested assessment by clear and convincing evidence (see People v Neish, 281 AD2d 817 [2001]). As that analysis did not take place here, this matter must be remitted to County Court for further proceedings.

[785]*785Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the order is reversed, on the law, without costs, and matter remitted to the County Court of Albany County for further proceedings not inconsistent with this Court’s decision.

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Crew III, J.P.

Appeal from an order of the County Court of Albany County (Herrick, J.), entered July 13, 2004, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty to two counts of sodomy in the second degree and thereafter was sentenced to concurrent terms of imprisonment. Upon his release, defendant was evaluated and presumptively classified as a risk level II sex offender in accordance with the Sex Offender Registration Act (see Correction Law art 6-C). The Board of Examiners of Sex Offenders, however, recommended that defendant’s classification be elevated to risk level III. Following a hearing, County Court “confirmed” the Board’s recommendation. Defendant now appeals.

We reverse. During the hearing, County Court advised counsel that it was of the opinion that its role was to determine whether the Board’s recommendation was arbitrary or capricious and, apparently, that it did not have the authority to independently establish an appropriate risk level. Indeed, in its decision, County Court referred to its hearing as an “appeal” and ultimately “confirmed” the Board’s “determination.” Quite to the contrary, pursuant to Correction Law § 168-n (1) and (2), County Court is obliged to make the risk level determination after receiving the Board’s recommendation (see People v David W., 95 NY2d 130, 138 [2000]; People v Marr, 20 AD3d 692, 693 [2005]), and the burden is upon the prosecutor to establish the basis for a requested assessment by clear and convincing evidence (see People v Neish, 281 AD2d 817 [2001]). As that analysis did not take place here, this matter must be remitted to County Court for further proceedings.

[785]*785Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the order is reversed, on the law, without costs, and matter remitted to the County Court of Albany County for further proceedings not inconsistent with this Court’s decision.

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Bluebook (online)

27 A.D.3d 784, 809 N.Y.S.2d 680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-peters-nyappdiv-2006.

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