Opinion
2013-04-17
PEOPLE of State of New York, respondent, v. Charles RUNKO, appellant.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Suffolk County (Spinner, J.), dated July 12, 2012, which, without a hearing, denied his motion pursuant to Correction Law § 168–o(2) for a downward modification of his risk level classification under Correction Law article 6–C.
ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing and, thereafter, a new determination of the defendant's motion.
By notice of motion dated September 21, 2010, the defendant moved pursuant to Correction Law § 168–o(2) for a downward modification of his risk level classification under the Sex Offender Registration Act (Correction Law article 6–C). The Supreme Court denied the defendant's motion without holding a hearing. Because the requisite procedures set forth in Correction Law § 168–o were not followed, we reverse.
As the People correctly concede, the Supreme Court failed to conduct a hearing on the defendant's motion, as it was required to do pursuant to Correction Law § 168–o(4) ( see People v. Hazen, 103 A.D.3d 943, 962 N.Y.S.2d 367;People v. Lashway, 90 A.D.3d 1178, 1178, 933 N.Y.S.2d 922;see also People v. Damato, 58 A.D.3d 819, 821, 873 N.Y.S.2d 116). Accordingly, the matter must be remitted to the Supreme Court, Suffolk County, for a hearing and, thereafter, a new determination of the defendant's motion.