People v Runko
2013 NY Slip Op 02555 [105 AD3d 927]
April 17, 2013
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 29, 2013


The People of the State of New York, Respondent,
v
Charles Runko, Appellant.

[*1] 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 art 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 AD3d 943 [2013]; People v Lashway, 90 AD3d 1178, 1178 [2011]; see also People v Damato, 58 AD3d 819, 821 [2009]). 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. Rivera, J.P., Dickerson, Leventhal and Hinds-Radix, JJ., concur.