        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

178
KA 10-01144
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CORNELL LONG, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered September 21, 2009. The order determined
that defendant is a level two risk pursuant to the Sex Offender
Registration Act.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Supreme Court, Erie County, 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.). We reject defendant’s contention that Supreme Court
erred in assessing 15 points against him under the risk factor for
number and nature of prior crimes, based on his previous youthful
offender adjudication. “In the context of the criminal history
section of the risk assessment instrument [RAI], the term crime
includes criminal convictions, youthful offender adjudications and
juvenile delinquency findings” (People v Irving, 45 AD3d 1389, 1389,
lv denied 10 NY3d 703 [internal quotation marks omitted]).

     We agree with defendant, however, that the 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 statement of the court that it
reviewed the case summary, RAI and all relevant information and
evidence and that it accepted the findings contained in the case
summary and RAI, without further explanation, was insufficient to meet
the statutory requirement (see People v Flax, 71 AD3d 1451; People v
Hubel, 70 AD3d 1492, 1493-1494; People v Cullen, 53 AD3d 1105).
“[T]he failure of the court to set forth [those] findings of fact and
conclusions of law . . . ‘preclud[es] meaningful appellate review of
the propriety of the court’s risk level assessment’ ” (Flax, 71 AD3d
at 1452). We therefore hold the case, reserve decision and remit the
                                 -2-                          178
                                                        KA 10-01144

matter to Supreme Court for compliance with the statute (see Cullen,
53 AD3d 1105; People v Terrill, 17 AD3d 1045).




Entered:   February 18, 2011                   Patricia L. Morgan
                                               Clerk of the Court
