PEOPLE v. FREEMAN (2007)

Appeal from an order of the County Court of Chemung County (Buckley, J.), rendered February 23, 2005, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.

The facts of this case are set forth in this Court's prior decision involving an application by defense counsel to be relieved of his assignment (34 A.D.3d 1106, 825 N.Y.S.2d 648 [2006] ).   This Court withheld decision and assigned new appellate counsel to address any potential issues of “arguable merit” (People v. Cruwys, 113 A.D.2d 979, 980, 493 N.Y.S.2d 653 [1985], lv. denied 67 N.Y.2d 650, 499 N.Y.S.2d 1046, 490 N.E.2d 562 [1986] ), such as the propriety of the sex offender risk classification assigned to defendant by County Court (34 A.D.3d 1106, 825 N.Y.S.2d 648 [2006], supra ).

The record reveals that the Board of Examiners of Sex Offenders did not fully complete the risk assessment instrument, but, rather, relied upon the overriding factor of defendant's prior felony conviction for a sex crime as presumptively classifying him as a risk level III sex offender.   As the People candidly concede, under a decision handed down by this Court subsequent to the order appealed from herein, this was error (see People v. Sanchez, 20 A.D.3d 693, 694, 798 N.Y.S.2d 258 [2005] ).   Significantly, it cannot be deemed harmless as there is nothing to indicate that County Court reviewed all of the evidence, instead indicating that a level III designation was mandatory.   The court also failed to “render an order setting forth its determinations and the findings of fact and conclusions of law on which such determinations are based” (Correction Law § 168-n [3];  see People v. Sanchez, 20 A.D.3d at 695, 798 N.Y.S.2d 258;  see also People v. Torchia, 39 A.D.3d 1137, 1137-1138, 832 N.Y.S.2d 826 [2007];  cf. People v. Dolan, 30 A.D.3d 697, 697-698, 817 N.Y.S.2d 688 [2006] ).   Therefore, the order must be reversed and the matter remitted to County Court for a disposition that complies with the statutory requirements.

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

SPAIN, J.

CREW III, J.P., PETERS, LAHTINEN and KANE, JJ., concur.