PEOPLE v. DEAN (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum:  Defendant appeals from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (SORA) (Correction Law § 168 et seq.) after a conviction of, inter alia, four counts of sodomy in the first degree.  Defendant contends that he was denied a fair SORA hearing because Supreme Court failed to consider medical records, which allegedly cast doubt upon his guilt of the underlying crimes, as evidence of a mitigating factor warranting a downward departure to a level two risk.  Even assuming, arguendo, that defendant preserved his contention for our review (see generally People v. Quigley, 163 A.D.3d 1463, 1463, 76 N.Y.S.3d 870 [4th Dept. 2018] ), we conclude that it lacks merit.  The record demonstrates that the court considered the relevant medical records and concluded that they did not cast doubt upon his guilt.  Moreover, “[f]acts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated” at a SORA hearing (Correction Law § 168–n [3]; see People v. Law, 94 A.D.3d 1561, 1562, 943 N.Y.S.2d 814 [4th Dept. 2012], lv denied 19 N.Y.3d 809, 2012 WL 3743354 [2012] ).  Thus, defendant was precluded from using the medical records to establish at the SORA hearing his claim of innocence inasmuch as his guilt had been proven at trial.

Contrary to defendant's further contention, we conclude that defense counsel was not ineffective in purportedly failing to request that the court consider the medical records in support of his application for a downward departure because such a request had “ ‘little or no chance of success’ ” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005]; see People v. Price, 129 A.D.3d 1484, 1484–1485, 10 N.Y.S.3d 375 [4th Dept. 2015], lv denied 26 N.Y.3d 970, 18 N.Y.S.3d 607, 40 N.E.3d 585 [2015] ).

We agree with defendant, however, that the court failed to comply with Correction Law § 168–n (3), requiring the court to set forth the findings of fact and conclusions of law upon which it based its determination (see People v. Flax, 71 A.D.3d 1451, 1451–1452, 896 N.Y.S.2d 560 [4th Dept. 2010] ).  Although the court provided a list of the risk factors for which defendant was assessed points and held that defendant failed to rebut the presumption that he is a level three risk, the court did not provide the findings of fact or conclusions of law supporting its denial of defendant's request for a downward departure.  We therefore hold the case, reserve decision, and remit the matter to Supreme Court for compliance with Correction Law § 168–n (3) (see People v. Long, 81 A.D.3d 1432, 1433, 916 N.Y.S.2d 881 [4th Dept. 2011]; People v. Cullen, 53 A.D.3d 1105, 1106, 862 N.Y.S.2d 684 [4th Dept. 2008] ).