People v Gonzalez

People v Gonzalez 2011 NY Slip Op 09607 Decided on December 27, 2011 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 27, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
DANIEL D. ANGIOLILLO, J.P.
PLUMMER E. LOTT
LEONARD B. AUSTIN
JEFFREY A. COHEN, JJ.
2010-07401

[*1]People of State of New York, respondent,

v

Juan Gonzalez, appellant.




Lynn W. L. Fahey, New York, N.Y. (William Kastin of counsel;
Emma Brown-Bernstein on the brief), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard
Joblove, Anthea H. Bruffee, and Adam
M. Koelsch of counsel), for
respondent.


DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.), dated June 28, 2010, which, after a hearing, designated him a level two sex offender and a sexually violent offender pursuant to 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, Kings County, for a new risk level assessment hearing and a new determination thereafter, to be preceded by notice to the defendant in accordance with Correction Law § 168-d(3).

A sex offender facing risk level classification under the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA) has a due process right to be present at the hearing (see People v David W., 95 NY2d 130, 133; People v Arrahman, 83 AD3d 680; People v Gonzalez, 69 AD3d 819). " To establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence'" (People v Arrahman, 83 AD3d at 680, quoting People v Porter, 37 AD3d 797, 797).

Here, the record contains no evidence that the defendant received notice of the hearing date. Thus, as the People correctly concede, the defendant's due process rights were violated, and the matter must be remitted to the Supreme Court, Kings County, for a new risk level assessment hearing and a new determination thereafter, to be preceded by notice to the defendant in accordance with Correction Law § 168-d(3) (see People v Arrahman, 83 AD3d at 680; People v Distaffen, 71 AD3d 1597, 1598; People v Gonzalez, 69 AD3d 819).

The defendant's remaining contention is not properly before this Court, since he failed to raise it before the Supreme Court.
ANGIOLILLO, J.P., LOTT, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court