People v Johnson (Victor)

[*1] People v Johnson (Victor) 2006 NY Slip Op 52306(U) [13 Misc 3d 143(A)] Decided on November 30, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 6, 2006; it will not be published in the printed Official Reports.

Decided on November 30, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ANGIOLILLO, J.P., McCABE and TANENBAUM, JJ
2004-8 N CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

Victor Johnson, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Francis D. Ricigliano, J.), dated November 14, 2003. The order, following a hearing, designated defendant a level three sex offender.

Appeal held in abeyance and matter remanded to the court below for an immediate risk level assessment hearing and a new determination, to be preceded by notice to the defendant in accordance with Correction Law § 168-n (3) and to report its determination to this court with all convenient speed.

On July 3, 2003, defendant entered pleas of guilty to sexual abuse in the third degree (Penal Law § 130.60 [2]) and endangering the welfare of a child (Penal Law § [*2]
260.10 [1]). At the time of his plea, the court agreed to a sentence of 10 months' incarceration on each charge, to be served concurrently. Sentencing was adjourned to August 28, 2003 in order to allow for preparation of a pre-sentence report. On the adjourned date, the pre-sentence report was available to defense counsel. Defense counsel requested another adjournment of sentencing. Defense counsel thereafter requested further adjournments through November 5, 2003. Defendant, who had remained incarcerated, was due to be released on November 6, 2003. As a result thereof, the court granted one more adjournment to November 6, 2003 to allow for review of the certified copy of an out-of-state conviction of a sexual offense. The court imposed sentence on November 6, 2003 and simultaneously conducted a hearing to determine defendant's sex offender classification. Following said hearing, the court designated defendant a level three sex offender.

In the case at bar, the Board of Examiners, in accordance with the guidelines and procedures outlined in section 168-l (5), completed a risk assessment instrument in which it recommended that defendant be classified as a level three offender due to a prior felony sex crime conviction, for which a defendant is presumed to be a level three offender. After reviewing the recommendation of the Board, the certified copy of defendant's felony conviction in Maryland, the pre-sentence report and the facts in the underlying pleas, the court concurred with the recommendation of the Board of Examiners and classified defendant as a level three offender. In reaching its decision, the court noted that there was no clear and convincing evidence which would indicate the existence of any mitigating factor and/or special circumstance warranting a reduction of the risk level.

A sex offender facing risk level classification under the Sex Offender Registration Act has a due process right to "be given notice of the classification proceeding, sufficiently in advance of the hearing to afford the affected individual an opportunity to prepare to challenge and rebut the state's contentions" (Doe v Pataki, 3 F Supp 2d 456, 471 [1998]; see People v Brooks, 308 AD2d 99 [2003], lv denied 1 NY3d 502 [2003]). The due process rights are incorporated in section 168-n (3) of the Correction Law, which requires, inter alia, that the offender "shall" be notified in writing of the risk level assessment hearing date, and be provided with a copy of the Board's recommendation together with a statement of the reasons therefor, at least 20 days before the hearing. The failure of the court herein to ensure that these due process requirements were followed requires, under the circumstances presented, remand for a new determination to be preceded by the appropriate notice to the offender (see People v Brooksvasquez, 24 AD3d 644 [2005]; see also Correction Law §168-n [3]).

We recognize that a need for continued scrutiny not only exists, but is mandated under the Sex Offender Registration Act. Thus, in order to protect the community and comply with the mandates of the act, while offering defendant his right of due process, the appeal is held in abeyance pending redetermination following a hearing in accordance with the opinion herein.

Angiolillo, J.P., McCabe and Tanenbaum, JJ., concur.
Decision Date: November 30, 2006