Summary
holding that "Defendant's request for a downward modification of his risk level was improperly made by motion, rather than by petition as required by Correctional Law § 168-o ."
Summary of this case from People v. SteinOpinion
2013-02-14
The PEOPLE of the State of New York, Respondent, v. Michael S. HAZEN, Appellant.
Teresa C. Mulliken, Harpersfield, for appellant. Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), for respondent.
Teresa C. Mulliken, Harpersfield, for appellant. Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), for respondent.
Before: PETERS, P.J., STEIN, GARRY and EGAN JR., JJ.
PETERS, P.J.
Appeal from an order of the County Court of Delaware County (Becker, J.), entered November 23, 2011, which denied defendant's motion for modification of his Sex Offender Registration Act classification.
In 1997, defendant was convicted of the crime of sexual abuse in the first degree and was sentenced to 2 to 4 years in prison. In 2006, following a hearing, he was designated a risk level III sex offender under the Sex Offender Registration Act ( see Correction Law art. 6–C). In 2011, defendant moved for a modification of his level of notification pursuant to Correction Law § 168–o. County Court summarily denied his application, and he now appeals.
Inasmuch as the procedural requirements of Correction Law § 168–o were not met, the order must be reversed. Defendant's request for downward modification of his risk level was improperly made by motion, rather than by petition as required by Correction Law § 168–o (2). In addition, County Court did not request an updated recommendation from the Board of Examiners of Sex Offenders and, while defendant never specifically requested a hearing, the court was required to conduct one ( seeCorrection Law § 168–o [4] ). In view of these deficiencies, we remit the matter to County Court for further proceedings in accordance with the requirements of Correction Law § 168–o ( see People v. Lashway, 90 A.D.3d 1178, 1178, 933 N.Y.S.2d 922 [2011],lv. dismissed18 N.Y.3d 945, 944 N.Y.S.2d 468, 967 N.E.2d 692 [2012];People v. Damato, 58 A.D.3d 819, 820, 873 N.Y.S.2d 116 [2009] ).
ORDERED that the order is reversed, on the law, without costs, and matter remitted to the County Court of Delaware County for further proceedings not inconsistent with this Court's decision.