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People v. Zayas

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


December 18, 2008

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JOSE M. ZAYAS, APPELLANT.

The opinion of the court was delivered by: Kavanagh, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: November 14, 2008

Before: Cardona, P.J., Spain, Rose, Kavanagh and Stein, JJ.

MEMORANDUM AND ORDER

Appeal from an order of the County Court of Rensselaer County (Jacon, J.), entered February 28, 2008, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty to sexual misconduct, among other crimes, stemming from the forcible rape of a 15-year-old acquaintance on numerous occasions and he was sentenced to two consecutive one-year terms of incarceration. In anticipation of defendant's release, the Board of Examiners of Sex Offenders prepared a risk assessment instrument pursuant to the Sex Offender Registration Act (see Correction Law art 6-C), classifying him as a risk level III sex offender. Following a hearing, County Court adopted the Board's recommendation with a minor reduction in point assessment and classified defendant as a risk level III sex offender, prompting this appeal.

Upon a review of the record, we find that meaningful appellate review of defendant's designation as a risk level III sex offender is foreclosed because County Court failed to issue an order setting forth its findings of fact and conclusions of law as required by Correction Law § 168-n (3) (see People v Judson, 50 AD3d 1242, 1243 [2008]; People v Torchia, 39 AD3d 1137, 1138 [2007]). The court's single-page form order merely concluded that defendant be assigned a final risk level of III and alludes to the "findings of fact and conclusions of law made on the record in open court." However, a review of the hearing minutes establishes that, of the nine categories for which the Board assessed points, the court addressed just three categories and issued no findings of fact or conclusions of law with regard to the other six (see People v Marr, 20 AD3d 692, 693 [2005]; compare People v Roberts, 54 AD3d 1106 [2008]). For that reason, the matter must be remitted to County Court for a disposition in compliance with the mandates of the statute and in accordance with this decision. The parties' remaining arguments are rendered academic by our determination.

Cardona, P.J., Spain, Rose and Stein, JJ., concur.

ORDERED that the order is reversed, on the law, without costs, and matter remitted to the County Court of Rensselaer County for further proceedings not inconsistent with this Court's decision.

20081218

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