Opinion
2013-11-6
PEOPLE of State of New York, respondent, v. Herbert EDNEY, appellant.
Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and David Bernstein of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Laurie K. Gibbons, Jacqueline Rosenblum, and Elizabeth E. Schlissel of counsel), for respondent.
Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and David Bernstein of counsel), for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Laurie K. Gibbons, Jacqueline Rosenblum, and Elizabeth E. Schlissel of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Nassau County (St.George, J.), dated May 23, 2011, which, after a hearing, designated him a level three sex 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, Nassau County, for a new risk assessment hearing and a new risk level determination, to be preceded by receipt of a recommendation from the Board of Examiners of Sex Offenders pursuant to Correction Law § 168–l upon notice to the defendant in accordance with Correction Law § 168–n(3).
As the People correctly concede, the hearing court improperly concluded that the application of a presumptive override was mandatory ( see People v. Taylor, 103 A.D.3d 867, 868, 962 N.Y.S.2d 278;People v. Reynolds, 68 A.D.3d 955, 956, 891 N.Y.S.2d 451;People v. Sanchez, 20 A.D.3d 693, 695, 798 N.Y.S.2d 258). Further, the defendant was not timely notified of his opportunity to submit to the Board of Examiners of Sex Offenders (hereinafter the Board), before the Board issued its report and recommendation, any information which he believed was relevant for its review ( see People v. Black, 33 A.D.3d 981, 982, 823 N.Y.S.2d 485). Moreover, the defendant was not properly advised of his statutory right to counsel at the hearing ( seeCorrection Law § 168–n[3] ). Therefore, his waiver of counsel at the hearing was invalid ( see People v. Wilson, 103 A.D.3d 1178, 1179, 960 N.Y.S.2d 276).
The defendant's remaining contentions are without merit or need not be addressed in light of our determination.
Accordingly, we reverse the order and remit the matter to the Supreme Court, Nassau County, for a new risk assessment hearing and a new risk level determination, to be preceded by receipt of a recommendation from the Board pursuant to Correction Law § 168–l upon notice to the defendant in accordance with Correction Law § 168–n(3).