People v Holder (Michael)

[*1] People v Holder (Michael) 2009 NY Slip Op 51340(U) [24 Misc 3d 129(A)] Decided on June 29, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 29, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ
2006-1482 W C.

The People of the State of New York, Respondent,

against

Michael Holder, Appellant.

Appeal from an order of the City Court of Yonkers, Westchester County (Arthur J. Doran, J.), dated August 3, 2006. The order, after a hearing, designated defendant a level two sex offender.

Order reversed without costs and matter remitted to the City Court for a new determination of defendant's sex offender designation following a hearing.

Defendant appeals from an order designating him a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). On the record before us, we are unable to review whether the court properly determined defendant's risk level because the court failed to set forth its "findings of fact and conclusions of law" upon which its determination was based to classify defendant as a level two sex offender (Correction Law § 168-d [3]; People v Torchia, 39 AD3d 1137, 1138 [2007]; People v Sass, 27 AD3d 968, 969 [2006]), and the record is insufficient for this court to make its own findings of fact and conclusions of law (see People v Villane, 17 AD3d 336 [2005]).

We note that the People have the burden of proving the facts supporting the risk level assessment by clear and convincing evidence (see Correction Law § 168-d [3]; People v Mingo, 49 AD3d 148 [2008]; People v Hardy, 42 AD3d 487 [2007]). In determining whether the People have met their burden, the range of materials that may be considered by the court during the hearing is broad and may include, inter alia, a review of the victim's statement and any relevant materials and evidence submitted by the sex offender or the district attorney (see Correction Law § 168-d [3]). While the evidence relied upon by the People consisted of a risk assessment and letter prepared by an assistant district attorney, this evidence was insufficient to satisfy the People's burden since defendant contested factual allegations relating to the risk assessment evaluation (see People v Judson, 50 AD3d 1242 [2008]). [*2]

Accordingly, the order designating defendant a level two sex offender is reversed and the matter is remitted to the City Court for a new determination of defendant's designation following a hearing.

In view of the foregoing, we pass on no other issue.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).

Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009