by the defendant from an order of the Supreme Court, Queens
County (Koenderman, J.), dated July 16, 2012, which, after a
hearing, designated him a level three sex offender pursuant
to Correction Law article 6-C.
W. L. Fahey, New York, NY (A. Alexander Donn of counsel), for
Richard A. Brown, District Attorney, Kew Gardens, NY (John M.
Castellano, Johnnette Traill, William H. Branigan, and Anish
M. Patel of counsel), for respondent.
M. LEVENTHAL, J.P., SHERI S. ROMAN, SYLVIA O. HINDS-RADIX,
VALERIE BRATHWAITE NELSON, JJ.
OPINION & ORDER
proceeding pursuant to the Sex Offender Registration Act
(see Correction Law art 6-C; hereinafter SORA), the
defendant, who had a history of mental illness, was removed
from the courtroom after making several outbursts during his
SORA risk assessment hearing. The hearing proceeded in the
defendant's absence, and the Supreme Court designated the
defendant a level three (high risk) sex offender. On this
appeal, we are principally called upon to consider whether
the court violated the defendant's right to due process
by failing to order a mental competency examination before
proceeding with the SORA hearing. For the reasons that
follow, we find that the court properly proceeded with the
SORA hearing and designated the defendant a level three sex
forth in the presentence report (hereinafter PSR), in
December 2007, the defendant, then 17 years old, approached
the complainant, who was jogging in Baisley Pond Park in
Queens, and pushed her to the ground. As further stated in
the PSR, the defendant pulled the complainant's pants
down as she struggled, "took his penis out, rubbed it
against her vagina and attempted to push his penis into her
vagina." The complainant grabbed the defendant's
penis, twisted it, and the defendant ran away.
February 2, 2008, the defendant was arrested in connection
with the armed robbery of an individual in Queens. Later that
same day, he was arrested in connection with the instant sex
offense. According to the sworn felony complaint, "the
defendant admitted that he put his penis in the
complainant's vagina." The PSR indicated that the
defendant told the arresting officer that he "saw a
pretty girl jogging in Baisley Park and wanted to have sex
because he had been promised sex by two girls on Myspace'
and they did not show up." Additionally, the defendant
stated during his interview with the Probation Department
that he "knew the complainant from the park" and
that "the sex was mutual."
defendant was charged with sexual abuse in the first degree.
In April 2008, the defendant underwent two competency
examinations pursuant to CPL 730.30 to ascertain his fitness
to proceed with respect to three pending criminal cases,
including the instant offense, and he was deemed not fit to
proceed. An examination report dated April 14, 2008, stated
that the defendant "would not be able to conduct himself
in an appropriate manner in any court proceedings at this
time, " and diagnosed him with "Psychotic Disorder,
Not Otherwise Specified." A second examination report,
dated April 15, 2008, prepared by a different evaluator,
found that the defendant was "thought disordered and
unable to discuss his charges in any reasonable fashion,
" or "much of anything in a meaningful way, "
and diagnosed him with "Psychosis, NOS."
the defendant was found fit to proceed, and on October 6,
2008, he pleaded guilty to sexual abuse in the first degree.
A presentence mental health examination report dated October
29, 2008, which deemed the defendant fit to be sentenced,
indicated that the defendant's prescribed psychiatric
medication appeared to be helping with his symptoms and that
he was aware of the charges against him.
defendant was sentenced to an aggregate term of 54 months of
imprisonment to be followed by five years of postrelease
April 2012, in anticipation of the defendant's release,
the Board of Examiners of Sex Offenders (hereinafter the
Board) prepared a case summary and a Risk Assessment
Instrument (hereinafter RAI) to assess the defendant's
risk of reoffense and the threat he posed to the safety of
the public (see Correction Law § 168-l). The
Board assessed the defendant a total of 115 points, making
him a presumptive level three (high risk) sex offender.
to the case summary dated April 27, 2012, the defendant
"currently" was in a Department of Corrections and
Community Supervision (hereinafter DOCCS) "Intensive
Care Program Facility in order to receive the appropriate
level of Mental Health treatment that he requires."
Additionally, the defendant was on the required program list
for the DOCCS Sex Offender Counseling and Treatment Program
following "a history of refusing sex offender
treatment." The case summary also set forth the
defendant's criminal history, which included convictions
for criminal contempt in the second degree, robbery in the
third degree, and attempted assault in the second degree. The
defendant's conviction for attempted assault in the
second degree stemmed from conduct which occurred during his
confinement in the correctional facility. The defendant was
also arrested in February 2012 for assault.
case summary further indicated that the defendant's
custodial adjustment was "considered unacceptable and
include[d] serious Tier III sanctions for Lewd Conduct which
he received on September 23, 2010 [and] November 9, 2011,
" and that he also had "a Tier III pending for Lewd
Conduct." The defendant had "also garnered an
additional 10 Tier II's and 10 Tier III's." The
Board concluded that a level three designation was "the
most appropriate Level for this sexually violent ...