Opinion
722 KA 20-01484
11-12-2021
The PEOPLE of the State of New York, Respondent, v. Robert DOUGLAS, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (MATTHEW BELLINGER OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (MATTHEW BELLINGER OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Supreme Court, Onondaga County, for further proceedings in accordance with the following memorandum: Defendant appeals from an order classifying him as a level three sex offender under the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq. ). We reverse.
Where a "defendant's prior felony conviction of a sex crime raised his [or her] presumptive risk level from level two to level three ..., the [SORA] court is not mandated to apply the override but may, in appropriate circumstances, impose a lower risk level" ( People v. Reynolds , 68 A.D.3d 955, 956, 891 N.Y.S.2d 451 [2d Dept. 2009] ; see People v. Howard , 27 N.Y.3d 337, 341, 33 N.Y.S.3d 132, 52 N.E.3d 1158 [2016] ; People v. Edmonds , 133 A.D.3d 1332, 1333, 20 N.Y.S.3d 802 [4th Dept. 2015], lv denied 26 N.Y.3d 918, 26 N.Y.S.3d 763, 47 N.E.3d 93 [2016] ). "[T]reating the presumptive override as mandatory is a ground for reversal" ( People v. Jones , 172 A.D.3d 1786, 1787, 99 N.Y.S.3d 510 [3d Dept. 2019] [internal quotation marks omitted]).
Here, Supreme Court, in its oral decision, incorrectly treated defendant's presumptive level three classification as mandatory, and the court therefore never ruled on his downward departure application. We reject the People's assertion that the court corrected that error in its subsequent written decision. To the contrary, the written decision explicitly "incorporates ... [the] oral decision" and again failed to rule on defendant's downward departure application. Moreover, the "compelling evidence" line in the written decision merely summarized the findings of the Board of Examiners of Sex Offenders and was not—as the People characterize it—an independent holding or ruling by the court. Thus, as defendant correctly contends, remittal to Supreme Court "is required so that a proper evaluation of his risk level may occur" ( People v. Denny , 87 A.D.3d 1230, 1231, 929 N.Y.S.2d 886 [3d Dept. 2011] ; see Jones , 172 A.D.3d at 1787-1788, 99 N.Y.S.3d 510 ; Reynolds , 68 A.D.3d at 956, 891 N.Y.S.2d 451 ).
We note that, on remittal, the court must set forth in writing "its determinations and the findings of fact and conclusions of law on which the determinations are based" ( Correction Law § 168-n [3] ). Additionally, given defendant's temporally-proximate conviction in Madison County, we remind the court and the parties to ensure that all further proceedings comply with People v. Cook, 29 N.Y.3d 114, 119-120, 53 N.Y.S.3d 234, 75 N.E.3d 651 (2017) ; see e.g. People v. Miller , 179 A.D.3d 1517, 1517-1518, 118 N.Y.S.3d 340 (4th Dept. 2020).