People v Garcia (Fernando)

[*1] People v Garcia (Fernando) 2015 NY Slip Op 51878(U) Decided on December 14, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 14, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., IANNACCI and TOLBERT, JJ.
2012-1624 OR C

The People of the State of New York, Appellant,

against

Fernando Garcia, Respondent.

Appeal from an order of the Justice Court of the Town of Warwick, Orange County (Peter D. Barlet, J.), entered April 5, 2012. The order, after a hearing, designated defendant a level one sex offender pursuant to Correction Law article 6-C.

ORDERED that the matter is remitted to the Justice Court of the Town of Warwick to set forth its findings of fact and conclusions of law in accordance with Correction Law § 168-d (3), and the appeal is held in abeyance in the interim; the Justice Court shall file its report with all convenient speed.

The People appeal from an order determining that defendant is a level one sex offender, pursuant to the Sex Offender Registration Act (SORA) (Correction Law article 6-C).

Defendant pleaded guilty to sexual misconduct (Penal Law § 130.20 [1]), stemming from his having had sexual intercourse with a 14-year-old victim. At the SORA hearing (see Correction Law § 168 et seq.), the People presented the risk assessment instrument assessing a total of 85 points to support a designation finding defendant a level two sex offender. After the hearing, in a written decision and order, the court designated defendant a level one sex offender. On appeal, the People contend that the Justice Court failed to consider the evidence they presented at the hearing and failed to set forth adequate conclusions of law to support its determination.

Upon an examination of the record, we are unable to review whether the Justice Court properly determined defendant's sex offender risk level because the court failed to adequately set forth the "findings of fact and conclusions of law" upon which its determination was based (Correction Law § 168-d [3]; see People v Torchia, 39 AD3d 1137 [2007]; People v Holder, 24 Misc 3d 129[A], 2009 NY Slip Op 51340[U] [App Term, 9th & 10th Jud Dists 2009]), 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]).

Accordingly, the matter is remitted to the Justice Court to set forth its findings of fact and conclusions of law, and the appeal is held in abeyance in the interim.

Marano, P.J., Iannacci and Tolbert, JJ., concur.

Decision Date: December 14, 2015