People v. Torres

210 A.D.3d 1027

179 N.Y.S.3d 284

PEOPLE of State of New York, respondent,

v.Antonio TORRES, appellant.

2022–02060

Supreme Court, Appellate Division, Second Department, New York.

Submitted—October 26, 2022

November 23, 2022

James D. Licata, New City, NY (Lois Cappelletti of counsel), for appellant.

Thomas E. Walsh II, District Attorney, New City, NY (Jacob B. Sher of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., ANGELA G. IANNACCI, PAUL WOOTEN, LILLIAN WAN, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Rockland County (Kevin F. Russo, J.), dated February 28, 2022, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

The defendant was convicted, upon his plea of guilty, of attempted course of sexual conduct against a child in the first degree. After a hearing pursuant to 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 County Court, sua sponte, assessed the defendant an additional 10 points. The court thereafter designated the defendant a level two sex offender. The defendant appeals.

"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, 119 N.Y.S.3d 794 ; see Correction Law § 168–n[3] ; People v. David W., 95 N.Y.2d 130, 136–138, 711 N.Y.S.2d 134, 733 N.E.2d 206 ; People v. Griest, 143 A.D.3d 1058, 1059, 40 N.Y.S.3d 576 ; People v. Black, 33 A.D.3d 981, 981–982, 823 N.Y.S.2d 485 ). "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, 40 N.Y.S.3d 576 ; see People v. Maus, 162 A.D.3d 1415, 1416, 80 N.Y.S.3d 509 ; People v. Hackett, 89 A.D.3d 1479, 1480, 933 N.Y.S.2d 470 ). Thus, "a court's sua sponte departure from the Board's recommendation ... without prior notice, deprives the defendant of a meaningful opportunity to respond" ( People v. Segura, 136 A.D.3d 496, 497, 26 N.Y.S.3d 7 ; see People v. Chrisley, 172 A.D.3d 1914, 1915, 99 N.Y.S.3d 569 ).

As the defendant correctly contends, the County Court improperly increased his total score by 10 points. The defendant was not provided prior notice that the court was considering the assessment of additional points, and he had no meaningful opportunity to contest the imposition of those points (see People v. Montufar–Tez, 195 A.D.3d 1052, 1053, 146 N.Y.S.3d 791 ; People v. Manougian, 132 A.D.3d 746, 747, 17 N.Y.S.3d 507 ).

Nevertheless, deducting 10 points from the total points assessed against the defendant does not alter his presumptive risk level, from which the County Court did not depart in...