Matter of De Negris
Annotate this CaseDecided on March 14, 2005
County Court, Schenectay County
In the Matter of Gerald De Negris.
1189-16
For the PeopleSusan Ciani Casey, Esq.
Assistant District Attorney
For Gerald De Negris:Benjamin Shaw, Esq.
Assistant Public Defender
Richard C. Giardino, J.
The sex offender originally appeared before this Court on November 17, 2004, for the purpose of being advised of his right, under Doe v. Pataki (3 F Supp 2d 456), to a hearing to redetermine his SORA risk level. The sex offender was assigned a public defender to explain his rights to him and to represent him in that matter.
After consultation with his attorney and after being advised of his rights by this Court, the sex offender waived his right to a redetermination hearing and accepted the Level 2 finding recommended by the Board of Examiners of Sex Offenders on September 28, 1999. The original Level 2 determination was made by Judge Michael Eidens, based on the September 1999 SORA Risk Assessment Instrument calculation of 100 points. This Court initially signed the Order based on the 1999 assessment and the waiver by the sex offender.
Upon further review, the Court has determined that the initial assessment was inaccurate. The 1999 risk assessment was not completed within the sixty-day period prior to the sex offender's release from custody, as required by Correction Law §168-l(6). When the 1999 risk assessment was completed, the sex offender was approaching his conditional release date. He was assessed "0" points under Category 14, "Release Environment," which calls for no points to be assessed if specialized supervision is expected. However, the sex offender was denied parole [*2]and was granted absolutely no time off for good behavior. His new release date was December 3, 2004, the very last day of his 5-15 year sentence commenced in1990 (he received almost a year of credit for his county jail time while awaiting trial). Therefore, specialized supervision was not possible upon his release.
Since the SORA assessment relied on by this Court was not completed within the statutory time period prior to release, and since there will be no specialized supervision of the sex offender, contrary to the assumption in the Risk Assessment Instrument, this Court modified the Risk Assessment Instrument to reflect an additional 15 points. The Court has an inherent duty to correct the record before it. The additional 15 points raises the sex offender's score from 100 to 115, which has the effect of raising the risk assessment from Level 2 to Level 3 for purposes of the registry.
The sex offender was returned to court on November 29, 2004 and informed of the correction by the Court. Defense Counsel opposed the sua sponte increase from Level 2 to Level 3 and refused to request a hearing, arguing that the Court was without power to set a hearing without a request from the sex offender.
The Court directed a hearing be held on February 8, 2005, at 10:30 am to determine the appropriate risk level. The sex offender failed to appear on February 8, 2005, because he was incarcerated in the Oneida County Correctional Facility for failing to provide an address upon his release from the state correctional facility where he served his prison sentence. He was charged with failure to register under SORA. An order to produce was prepared and the sex offender
was returned to court on February 17, 2005. At that time, defense counsel again argued that the Court could not sua sponte increase the risk assessed from Level 2 to Level 3, or order a hearing, absent a request by the sex offender.
The Court held a hearing on March 4, 2005 over the objection of the sex offender. The People submitted an updated Risk Assessment Instrument seeking a score of 115 points. Without conceding that the Court had the power to hold a hearing, defense counsel admitted a total of 75 of the 115 points sought by the People.
The Court gave defense counsel the opportunity to object to the evidence submitted by the People and to present evidence and arguments on behalf of the sex offender. The Court also offered the sex offender an opportunity to testify on his own behalf. The Court allowed this procedure to go forward in order to insure that all parties had an opportunity to make a full record. However, the Court does not believe that this process was necessary under People v. Wroten (286 AD2d 189), nor does the Court need not consider any of the evidence submitted by the People.
The original Level 2 determination entered on November 22, 1999 was based upon a supposition which never materialized. The sex offender's release from state prison with specialized supervision would have merited "0" points under Category 14, resulting in a total of [*3]100 points assessed and a Risk Level of 2. The Court takes judicial notice of the fact that sex offender was not released until December 3, 2004, without any parole or other specialized supervision. This rendered the Risk Assessment Instrument erroneous.
This Court corrects that error as follows: The sex offender is assessed 15 points under Category 14 for lack of supervision. This brings the total assessed score to 115, rendering the sex offender a Level 3 risk. The original finding of Level 2 is hereby corrected to Level 3, and the sex offender is directed to report as required for a Level 3 offender.
Dated: March 14, 2005
SO ORDERED.
____________________________________
Richard C. Giardino
Acting Schenectady County Court Judge
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