Opinion
1078 KA 19-02224
11-20-2020
The PEOPLE of the State of New York, Respondent, v. Mark GATLING, Defendant-Appellant.
ANDREW D. CORREIA, PUBLIC DEFENDER, ROCHESTER (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
ANDREW D. CORREIA, PUBLIC DEFENDER, ROCHESTER (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Wayne County Court for further proceedings in accordance with the following memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ). As defendant correctly contends and contrary to the People's contention, County Court failed to comply with Correction Law § 168-n (3), pursuant to which the court was required to set forth the findings of fact and conclusions of law upon which it based its determination. The standardized form order—which the court merely read into the record when rendering its oral decision—indicated without elaboration that the court was entirely adopting the case summary and risk assessment instrument prepared by the Board of Examiners of Sex Offenders, listed the risk factor point assessments contained therein, and denied in conclusory fashion defendant's request for a downward departure. That was inadequate to fulfill the statutory mandate (see People v. Dean , 169 A.D.3d 1414, 1415, 91 N.Y.S.3d 651 [4th Dept. 2019] ; People v. Cullen , 53 A.D.3d 1105, 1106, 862 N.Y.S.2d 684 [4th Dept. 2008] ; People v. Marr , 20 A.D.3d 692, 693, 798 N.Y.S.2d 260 [3d Dept. 2005] ; see generally People v. Smith , 11 N.Y.3d 797, 798, 868 N.Y.S.2d 569, 897 N.E.2d 1050 [2008] ). We therefore hold the case, reserve decision, and remit the matter to County Court for compliance with Correction Law § 168-n (3).