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

341
KA 12-00361
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEVIN C. JOHNSON, DEFENDANT-APPELLANT.


MICHAEL STEINBERG, ROCHESTER, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Genesee County Court (Robert C.
Noonan, J.), entered February 6, 2012. The order determined that
defendant is a level three risk pursuant to the Sex Offender
Registration Act.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by determining that defendant is a
level two risk pursuant to the Sex Offender Registration Act and as
modified the order is affirmed without costs.

     Memorandum: On appeal from an order determining that he is a
level three risk under the Sex Offender Registration Act ([SORA]
Correction Law § 168 et seq.), defendant contends that County Court
erred in assessing 20 points against him under risk factor 7, for his
relationship with one of the victims. We agree. At the SORA hearing,
the People had “the burden of proving the facts supporting the [risk
level classification] sought by clear and convincing evidence” (§ 168-
n [3]; see People v Wroten, 286 AD2d 189, 199, lv denied 97 NY2d 610).
Here, the People failed to meet their burden of establishing that
defendant “established or promoted” his relationship with the victim
“for the primary purpose of victimization” (Sex Offender Registration
Act: Risk Assessment Guidelines and Commentary, at 12 [2006]; see
People v Johnson, 93 AD3d 1323, 1324). The People presented no
evidence that defendant, who met the victim at a party, targeted the
victim for the primary purpose of victimizing her (see Johnson, 93
AD3d at 1324; cf. People v Washington, 91 AD3d 1277, 1277, lv denied
19 NY3d 801; People v Jackson, 70 AD3d 1385, 1385, lv denied 14 NY3d
714). As a result of the court’s error, defendant’s score on the risk
assessment instrument must be reduced by 20 points, and thus he should
be presumptively classified as a level two risk. We therefore modify
the order accordingly.

     We note in any event that we agree with defendant that the court
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                                                         KA 12-00361

failed to comply with Correction Law § 168-n (3), inasmuch as it
failed to set forth the findings of fact and conclusions of law upon
which it based its determination to assess points under risk factor 7
(see People v Carlton, 78 AD3d 1654, 1655, lv denied 16 NY3d 782;
People v Gilbert, 78 AD3d 1584, 1584, lv denied 16 NY3d 704). The
court merely recited its conclusion, i.e., that “[d]efendant
established a relationship with [the victim] for the purpose of
victimization.”

     Finally, we reject the contention of defendant that he was denied
effective assistance of counsel at the SORA hearing (see People v
Rotterman, 96 AD3d 1467, 1468, lv denied 19 NY3d 813; People v Bowles,
89 AD3d 171, 181, lv denied 18 NY3d 807).




Entered:   March 22, 2013                       Frances E. Cafarell
                                                Clerk of the Court
