| People v Arrahman |
| 2011 NY Slip Op 02855 [83 AD3d 680] |
| April 5, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AbdulArrahman, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley, Andrew Fukuda, andJacqueline Rosenblum of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Nassau County (Berkowitz, J.),entered March 23, 2009, which, after a hearing, designated him a level three sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the Supreme Court, Nassau County, for a new risk level assessment hearing and anew determination thereafter, to be preceded by notice to the defendant in accordance withCorrection Law § 168-n (3), as the People intend to seek a determination that differs fromthe recommendation submitted by the Board of Examiners of Sex Offenders.
"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 but his presence atthis noncriminal proceeding is entirely voluntary" (People v Porter, 37 AD3d 797 [2007]; see People v Gonzalez, 69 AD3d819 [2010]; People v Brooks, 308 AD2d 99, 104 [2003]). "To establish whether adefendant, by failing to appear at a SORA hearing, has waived the right to be present, evidencemust be shown that the defendant was advised of the hearing date, of the right to be present at thehearing, and that the hearing would be conducted in his or her absence" (People v Porter,37 AD3d at 797; see People v Brooks, 308 AD2d at 106). Thus, the defendant's failure toappear must be deliberate (see People vReid, 49 AD3d 338, 339 [2008]; People v Brooks, 308 AD2d at 106).
As the People correctly concede, the defendant's failure to appear was not deliberate. Thedefendant was incarcerated in Florida at the time of the SORA hearing, and his attorney informedthe court that the defendant would not waive his appearance. Consequently, the defendant isentitled to a new hearing.
In light of our determination, the defendant's remaining contentions have been renderedacademic. Rivera, J.P., Chambers, Hall and Lott, JJ., concur.