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The People of the State of v. Michael S. Hazen

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


February 14, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
MICHAEL S. HAZEN, APPELLANT.

Appeal from an order of the County Court of Delaware County (Becker, J.), entered November 23, 2011, which denied defendant's motion for modification of his Sex Offender Registration Act classification.

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

MEMORANDUM AND ORDER

Calendar Date: January 10, 2013

Before: Peters, P.J., Stein, Garry and Egan Jr., JJ.

In 1997, defendant was convicted of the crime of sexual abuse in the first degree and was sentenced to 2 to 4 years in prison. In 2006, following a hearing, he was designated a risk level III sex offender under the Sex Offender Registration Act (see Correction Law art 6-C). In 2011, defendant moved for a modification of his level of notification pursuant to Correction Law § 168-o. County Court summarily denied his application, and he now appeals.

Inasmuch as the procedural requirements of Correction Law § 168-o were not met, the order must be reversed. Defendant's request for downward modification of his risk level was improperly made by motion, rather than by petition as required by Correction Law § 168-o (2). In addition, County Court did not request an updated recommendation from the Board of Examiners of Sex Offenders and, while defendant never specifically requested a hearing, the court was required to conduct one (see Correction Law § 168-o [4]). In view of these deficiencies, we remit the matter to County Court for further proceedings in accordance with the requirements of Correction Law § 168-o (see People v Lashway, 90 AD3d 1178, 1178 [2011], lv dismissed 18 NY3d 945 [2012]; People v Damato, 58 AD3d 819, 820 [2009]).

Stein, Garry and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20130214

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