Lynn W. L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Danielle S. Fenn of counsel), for respondent.
REINALDO E. RIVERA, J.P., PLUMMER E. LOTT, SANDRA L. SGROI, ROBERT J. MILLER, JJ.
DECISION & ORDER
Appeal by the defendant from so much of an order of the Supreme Court, Queens County (Mullings, J.), dated August 17, 2009, as, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.
ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens 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.
The Sex Offender Registration Act (Correction Law article 6-C; hereinafter SORA) provides a statutory scheme under which sex offenders are classified and must register with the Division of Criminal Justice Services. The SORA statutory scheme sets out separate procedures for judicial determination of a sex offender's risk level depending on the nature of the offender's sentence (see People v Grimm, 107 A.D.3d 1040, 1042, lv denied _____ N.Y.3d _____ ). When the offender is incarcerated, the court makes the determination after receiving a recommendation from the Board of Examiners of Sex Offenders (hereinafter the Board) (see Correction Law § 168-n). Such determination "shall be made 30 calendar days prior to discharge, parole or release" (Correction Law § 168-n; see Correction Law § 168-l; People v Grimm, 107 A.D.3d at 1042). When an offender is sentenced to probation or otherwise discharged without incarceration, the court makes the risk level determination following the District Attorney's submission of a statement setting forth the risk level sought by the People (see Correction Law § 168-d; People v Grimm, 107 A.D.3d at 1042; People v Black, 33 A.D.3d 981, 981; People v Sgroi, 22 Misc.3d 902, 904 [County Ct, Madison County]).
In this case, the Supreme Court sentenced the defendant to a nine-month term of incarceration without any probation supervision. The court conducted the risk assessment hearing and made its risk level determination immediately after sentencing, using a risk level assessment instrument prepared by the District Attorney's office. This violated SORA and deprived the defendant of his right to due process (see People v Black, 33 A.D.3d at 982; People v Brooksvasquez, 24 A.D.3d 644; cf. People v Sgroi, 22 Misc.3d 902; People v Brown, 174 Misc.2d 941 [Sup Ct, Bronx County]). Pursuant to the SORA statutory scheme, a risk level determination should not have been made until 30 days before his release from custody (see Correction Law § 168-n; People v Black, 33 A.D.3d at 982). The court's determination should have been preceded by the Board's risk level recommendation, and the defendant should have been notified of the opportunity to submit to the Board any information that he believed was relevant for its review (see Correction Law § 168-n, ). Under the circumstances presented here, the fact that the defendant did not explicitly object to this procedure does not indicate that he knowingly and intelligently waived these statutory and due process rights or failed to preserve the issue for appellate review (see People v Black, 33 A.D.3d at 982; cf. People v Charache, 9 N.Y.3d 829). Moreover, while Correction Law § 168-l(8) provides that, notwithstanding the Board's failure to act, a court may still make a determination regarding a sex offender's risk level, "this must be read as applying only where the Board had the opportunity to make a recommendation in the first instance" (People v Black, 33 A.D.3d at 982). Here, the Board had no such opportunity, since the risk level determination was erroneously made immediately after the defendant was sentenced. As a result, "the Supreme Court was without a statutorily-authorized basis for making a risk level determination" (id. at 982; cf. People v Grimm, 107 A.D.3d 1040).
Accordingly, we reverse the order insofar as appealed from and remit the matter to the Supreme Court, Queens 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.
The defendant's remaining contention need not be addressed in light ...