Appeal from an order of the Criminal Court of the City of New York, Queens County (Pauline A. Mullings, J.), entered January 17, 2008.
Decided on March 25, 2013
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: WESTON, J.P., ALIOTTA and SOLOMON, JJ
The order, after a hearing, designated defendant a level three sex offender pursuant to Correction Law article 6-C.
ORDERED that the order is reversed, without costs, and the matter is remitted to the Criminal Court for a new designation, following a hearing, of defendant's sex offender level.
Defendant appeals from an order determining that he is a level three sex offender, pursuant to the Sex Offender Registration Act (Correction Law art 6-C), based upon a score of 115 on the risk assessment instrument. Upon an examination of the record, we are unable to review whether the court properly determined defendant's sex offender risk level because the court failed to set forth the "findings of fact and conclusions of law" upon which its determination was based (Correction Law § 168-d ; People v Torchia, 39 AD3d 1137, 1138 ; People v Sass, 27 AD3d 968, 969 ), and the record is insufficient for this court to make its own findings of fact and conclusions of law (see People v Kennedy, 79 AD3d 1470 ). We further note that we are unable to determine how the hearing court arrived at a total score of 115 in the risk assessment instrument since the total points assessed by the court amount to only 105, which assessment, in the first instance, results in a level two sex offender designation. Consequently, the order must be reversed and the matter remitted to the Criminal Court for a new designation, following a hearing, of defendant's sex offender level in compliance with the mandates of the statute (Correction Law art 6-C).
In view of the foregoing, we pass on no other issue.
Weston, J.P., Aliotta and Solomon, JJ., concur. Decision ...