PEOPLE v. PETERS (2006)

Appeal from an order of the County Court of Albany County (Herrick, J.), entered July 13, 2004, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty to two counts of sodomy in the second degree and thereafter was sentenced to concurrent terms of imprisonment.   Upon his release, defendant was evaluated and presumptively classified as a risk level II sex offender in accordance with the Sex Offender Registration Act (see Correction Law art. 6-C).   The Board of Examiners of Sex Offenders, however, recommended that defendant's classification be elevated to risk level III.   Following a hearing, County Court “confirmed” the Board's recommendation.   Defendant now appeals.

 We reverse.   During the hearing, County Court advised counsel that it was of the opinion that its role was to determine whether the Board's recommendation was arbitrary or capricious and, apparently, that it did not have the authority to independently establish an appropriate risk level.   Indeed, in its decision, County Court referred to its hearing as an “appeal” and ultimately “confirmed” the Board's “determination.”   Quite to the contrary, pursuant to Correction Law § 168-n(1) and (2), County Court is obliged to make the risk level determination after receiving the Board's recommendation (see People v. David W., 95 N.Y.2d 130, 138, 711 N.Y.S.2d 134, 733 N.E.2d 206 [2000];  People v. Marr, 20 A.D.3d 692, 693, 798 N.Y.S.2d 260 [2005] ), and the burden is upon the prosecutor to establish the basis for a requested assessment by clear and convincing evidence (see People v. Neish, 281 A.D.2d 817, 722 N.Y.S.2d 815 [2001] ).   As that analysis did not take place here, this matter must be remitted to County Court for further proceedings.

ORDERED that the order is reversed, on the law, without costs, and matter remitted to the County Court of Albany County for further proceedings not inconsistent with this Court's decision.

CREW III, J.P.

MUGGLIN, LAHTINEN and KANE, JJ., concur.