| People v Erb |
| 2009 NY Slip Op 00881 [59 AD3d 1020] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rudy E. Erb,Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Timothy P. Fitzgerald of counsel), forrespondent.
Appeal from an order of the Oneida County Court (Michael L. Dwyer, J.), entered August 8,2007. The order determined that defendant is a level two risk pursuant to the Sex OffenderRegistration Act.
It is hereby ordered that the order so appealed from is unanimously reversed in the interest ofjustice and on the law without costs and the matter is remitted to Oneida County Court forfurther proceedings in accordance with the following memorandum: Defendant appeals from anorder determining that he is a level two risk pursuant to the Sex Offender Registration Act(Correction Law § 168 et seq.). Although the total risk factor score on the riskassessment instrument (RAI) prepared by the Board of Examiners of Sex Offenders (Board)resulted in the presumptive classification of defendant as a level one risk, County Court agreedwith the Board's recommendation that an upward departure from defendant's presumptive risklevel was warranted based on aggravating factors not taken into account by the RAI. Althoughdefendant has not raised the issue, we conclude that his right to due process was violated basedon the failure of the court to conduct a hearing before making its determination of defendant'srisk level, as expressly required by Correction Law § 168-n (6). " '[T]he due processprotections required for a risk level classification proceeding are not as extensive as thoserequired in a plenary criminal or civil trial' " (People v Brooks, 308 AD2d 99, 105[2003], lv denied 1 NY3d 502 [2003], quoting Doe v Pataki, 3 F Supp 2d 456,470 [1998]). Nevertheless, although defendant waived his right to appear in person and to submitmaterials, there is no indication in the record before us that he waived his right to a hearing (see generally People v Costas, 46AD3d 475 [2007], lv denied 10 NY3d 716 [2008]). Indeed, Correction Law §168-n (6) requires that, "[i]f a sex offender, having been given notice . . . of thedetermination proceeding in accordance with this section, fails to appear at this proceeding,without sufficient excuse, the court shall conduct the hearing" and make its determination. Itdoes not provide that the failure to appear constitutes a waiver of the right to a hearing. Wetherefore reverse the order and remit the matter to County Court for a hearing and new risk leveldetermination in compliance with Correction Law § 168-n. Present—Scudder, P.J.,Hurlbutt, Fahey, Peradotto and Pine, JJ.