Opinion
2013-04-25
The PEOPLE of the State of New York, Respondent, v. Paul D. MIDDLEMISS, Appellant.
John A Cirando, Syracuse, for appellant. Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), for respondent.
John A Cirando, Syracuse, for appellant. Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), for respondent.
Before: ROSE, J.P., LAHTINEN, McCARTHY and EGAN JR., JJ.
ROSE, J.P.
Appeal from an order of the Supreme Court (Demarest, J.), entered March 3, 2005 in St. Lawrence County, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.
Defendant pleaded guilty to sodomy in the third degree in 1994 and he was classified in 1996 as a risk level III sex offender pursuant to the Sex Offender Registration Act ( see Correction Law art. 6–C). In 2005, he was afforded a rehearing pursuant to the stipulation in Doe v. Pataki, 3 F.Supp.2d 456 (1998). The People again sought classification of defendant as a risk level III sex offender and Supreme Court found “nothing that has been shown that would indicate that your level [of] offender [classification] should be changed in any way.” Defendant now appeals.
The People concede that defendant is entitled to a new hearing because Supreme Court treated the 2005 rehearing as one for modification, as opposed to classification ( compareCorrection Law § 168–n, withCorrection Law § 168–o). As the People now acknowledge, they bore the burden of establishing the determination sought by clear and convincing evidence ( seeCorrection Law § 168–n [3]; see e.g. People v. Callan, 62 A.D.3d 1218, 1218, 881 N.Y.S.2d 510 [2009];People v. Dickison, 24 A.D.3d 980, 981, 805 N.Y.S.2d 198 [2005],lv. denied6 N.Y.3d 709, 813 N.Y.S.2d 45, 846 N.E.2d 476 [2006] ). Inasmuch as the record here reflects that the burden was placed on defendant to demonstrate sufficient evidence warranting a departure from the risk level III classification ( seeCorrection Law § 168–o [2] ), we remit for a new hearing ( see People v. Zayas, 57 A.D.3d 1179, 1180, 870 N.Y.S.2d 495 [2008];People v. Freeman, 43 A.D.3d 1246, 1246–1247, 842 N.Y.S.2d 609 [2007] ). Defendant's remaining claims of error are rendered academic.
ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision.