Opinion
2019-06803
06-30-2021
People of State of New York, respondent, v. Mario Montufar-Tez, appellant.
James D. Licata, New City, NY (Lois Cappelletti of counsel), for appellant. Thomas E. Walsh II, District Attorney, New City, NY (Carrie A. Ciganek of counsel), for respondent.
Submitted - May 19, 2021
D66813 G/afa
James D. Licata, New City, NY (Lois Cappelletti of counsel), for appellant.
Thomas E. Walsh II, District Attorney, New City, NY (Carrie A. Ciganek of counsel), for respondent.
HECTOR D. LASALLE, P.J. CHERYL E. CHAMBERS ROBERT J. MILLER COLLEEN D. DUFFY PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the County Court, Rockland County (Kevin F. Russo, J.), entered June 3, 2019, 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 County Court, Rockland County, for a new risk level assessment hearing and a new determination in accordance with Correction Law § 168-n(3).
The defendant pleaded guilty to rape in the first degree and was sentenced to a term of imprisonment. Prior to the defendant's release from prison, the County Court held a risk level assessment hearing under the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA). In addition to the points requested by the Board of Examiners of Sex Offenders (hereinafter the Board) and the People, the court, sua sponte, assessed the defendant points under risk factor 4 (continuing course of sexual misconduct) and risk factor 15 (living or employment inappropriate). The court designated the defendant a level three sex offender. The defendant appeals.
The defendant's contention that his right to due process was violated when the County Court sua sponte assessed additional points during the risk level assessment hearing, which were not requested by either the People or the Board, is unpreserved for appellate review, since he did not object to the assessment of such points at the hearing (see CPL 470.05[2]; People v Velez, 100 A.D.3d 847, 847-848; People v Teagle, 64 A.D.3d 549, 550). Nonetheless, under the circumstances of this case, we exercise our interest of justice jurisdiction to review this contention.
"The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment" (People v Wilke, 181 A.D.3d 1324, 1325; see Correction Law § 168-n[3]; People v David W., 95 N.Y.2d 130, 136-138; People v Griest, 143 A.D.3d 1058, 1059; People v Black, 33 A.D.3d 981, 981-982). "A defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment" (People v Griest, 143 A.D.3d at 1059; see People v Maus, 162 A.D.3d 1415, 1416; People v Hackett, 89 A.D.3d 1479, 1480). Thus, "a court's sua sponte departure from the Board's recommendation at the hearing, without prior notice, deprives the defendant of a meaningful opportunity to respond" (People v Segura, 136 A.D.3d 496, 497; see People v Chrisley, 172 A.D.3d 1914, 1915).
Here, as correctly conceded by the People, the County Court's assessment of these points, without prior notice to the defendant, deprived him of a meaningful opportunity to respond to the assessment (see People v Chrisley, 172 A.D.3d at 1915; People v Segura, 136 A.D.3d at 497; see also People v Manougian, 132 A.D.3d 746, 747). Accordingly, we reverse the order, and remit the matter to the County Court, Rockland County, for a new risk level assessment hearing and a new determination in accordance with Correction Law § 168-n(3).
LASALLE, P.J., CHAMBERS, MILLER, DUFFY and WOOTEN, JJ., concur.