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The People of the State of v. Douglas A. Kennedy

State of New York Supreme Court, Appellate Division Third Judicial Department


December 23, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DOUGLAS A. KENNEDY, APPELLANT.

Appeal from an order of the County Court of Clinton County (McGill, J.), entered October 9, 2009, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

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

MEMORANDUM AND ORDER

Calendar Date: November 16, 2010

Before: Mercure, J.P., Peters, Rose, Malone Jr. and Garry, JJ.

Defendant pleaded guilty to, among other things, two counts of criminal sexual act in the second degree and was sentenced to a prison term of 2a to 7 years. In anticipation of his release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument that presumptively classified defendant as a risk level III sex offender. At the hearing that followed, defendant sought a downward modification based upon, among other things, a specialized psychological evaluation submitted on his behalf. County Court denied defendant's request and classified him as a risk level III sex offender, prompting this appeal.

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), and its execution of the standardized form designating defendant's risk level classification did not discharge its duty under the statute (see People v Marr, 20 AD3d 692, 693 [2005]). While we have found the statutory mandate to have been satisfied where the classifying court made detailed oral findings on the record (see e.g. People v Roberts, 54 AD3d 1106, 1106-1107 [2008], lv denied 11 NY3d 713 [2008]; People v Joslyn, 27 AD3d 1033, 1035 [2006]), County Court here made no oral or written findings, thereby precluding meaningful appellate review of defendant's classification as a risk level III sex offender (see People v Torchia, 39 AD3d 1137, 1138 [2007]; People v Sass, 27 AD3d 968, 969 [2006]; People v Sanchez, 20 AD3d 693, 695 [2005]; People v Hill, 17 AD3d 715, 716 [2005]). Accordingly, we reverse and remit this matter to County Court for a disposition in compliance with the statutory requirements.

Peters, Rose, Malone Jr. and Garry, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20101223

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