Opinion
2013-03-22
The PEOPLE of the State of New York, Respondent, v. Kevin C. JOHNSON, Defendant–Appellant.
Michael Steinberg, Rochester, for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
Michael Steinberg, Rochester, for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
On appeal from an order determining that he is a level three risk under the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq.), defendant contends that County Court erred in assessing 20 points against him under risk factor 7, for his relationship with one of the victims. We agree. At the SORA hearing, the People had “the burden of proving the facts supporting the [risk level classification] sought by clear and convincing evidence” (§ 168–n[3]; see People v. Wroten, 286 A.D.2d 189, 199, 732 N.Y.S.2d 513,lv. denied97 N.Y.2d 610, 740 N.Y.S.2d 694, 767 N.E.2d 151). Here, the People failed to meet their burden of establishing that defendant “established or promoted” his relationship with the victim “for the primary purpose of victimization” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 12 [2006]; see People v. Johnson, 93 A.D.3d 1323, 1324, 940 N.Y.S.2d 758). The People presented no evidence that defendant, who met the victim at a party, targeted the victim for the primary purpose of victimizing her ( see Johnson, 93 A.D.3d at 1324, 940 N.Y.S.2d 758;cf. People v. Washington, 91 A.D.3d 1277, 1277, 937 N.Y.S.2d 643,lv. denied19 N.Y.3d 801, 2012 WL 1505406;People v. Jackson, 70 A.D.3d 1385, 1385, 894 N.Y.S.2d 688,lv. denied14 N.Y.3d 714, 2010 WL 2400419). As a result of the court's error, defendant's score on the risk assessment instrument must be reduced by 20 points, and thus he should be presumptively classified as a level two risk. We therefore modify the order accordingly.
We note in any event that we agree with defendant that the court failed to comply with Correction Law § 168–n(3), inasmuch as it failed to set forth the findings of fact and conclusions of law upon which it based its determination to assess points under risk factor 7 ( see People v. Carlton, 78 A.D.3d 1654, 1655, 911 N.Y.S.2d 752,lv. denied16 N.Y.3d 782, 919 N.Y.S.2d 505, 944 N.E.2d 1145;People v. Gilbert, 78 A.D.3d 1584, 1584, 910 N.Y.S.2d 808,lv. denied16 N.Y.3d 704, 2011 WL 446506). The court merely recited its conclusion, i.e., that “[d]efendant established a relationship with [the victim] for the purpose of victimization.”
Finally, we reject the contention of defendant that he was denied effective assistance of counsel at the SORA hearing ( see People v. Rotterman, 96 A.D.3d 1467, 1468, 945 N.Y.S.2d 912,lv. denied19 N.Y.3d 813, 2012 WL 4074317;People v. Bowles, 89 A.D.3d 171, 181, 932 N.Y.S.2d 112,lv. denied18 N.Y.3d 807, 2012 WL 489796).
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by determining that defendant is a level two risk pursuant to the Sex Offender Registration Act and as modified the order is affirmed without costs.