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People v. Phillips

Supreme Court of New York, Second Department

October 30, 2013

People of State of New York, respondent,
v.
Marquis Phillips, appellant.

Lynn W. L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, LEONARD B. AUSTIN, JJ.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Tomei, J.), dated March 4, 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, Kings County, for a new risk level assessment hearing and a new determination, to be preceded by notice to the defendant in accordance with Correction Law § 168-n(3).

" A sex offender facing risk level classification under the Sex Offender Registration Act (hereinafter SORA) has a due process right to be present at the SORA hearing'" (People v Jackson, 94 A.D.3d 961, 961, quoting People v Gonzalez, 69 A.D.3d 819, 819; see Correction Law § 168-n[3]; People v Gutierrez-Lucero, 103 A.D.3d 89, 99; People v Ginyard, 101 A.D.3d 1095, 1095; People v Arrahman, 83 A.D.3d 680, 680). " To establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence'" (People v Jackson, 94 A.D.3d at 961, quoting People v Porter, 37 A.D.3d 797, 797; see People v Gutierrez-Lucero, 103 A.D.3d at 99; People v Arrahman, 83 A.D.3d at 680; People v Brooks, 308 A.D.2d 99, 106).

Here, the record contains no evidence that the defendant received notice of the hearing date. Thus, as the People correctly concede, the defendant's due process rights were violated. Accordingly, we reverse the order and remit the matter to the Supreme Court, Kings County, for a new risk level assessment hearing and a new determination, to be preceded by notice to the defendant in accordance with Correction Law § 168-n(3).

In light of our determination, the defendant's remaining contention need not be reached.

DILLON, J.P., DICKERSON, HALL and AUSTIN, JJ., concur.


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