| People v Jackson |
| 2012 NY Slip Op 02850 [94 AD3d 961] |
| April 17, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lemar Jackson, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen ofcounsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Balter, J.),dated September 13, 2010, which, after a hearing, designated him a level three sexually violentoffender pursuant 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, Kings County, for a new hearing and determination inaccordance herewith.
"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 Gonzalez, 69 AD3d 819,819 [2010]; see Correction Law § 168-n [3]). "To establish whether a defendant,by failing to appear at a SORA hearing, has waived the right to be present, evidence must beshown 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 Porter, 37 AD3d 797[2007]; see People v Brooks, 308 AD2d 99, 106 [2003]).
Here, the Supreme Court found that the defendant validly waived his right to appear at theSORA hearing based on an undated, written waiver, which was prepared by the New York StateDepartment of Correctional Services (now known as the New York State Department ofCorrections and Community Supervision) and purportedly signed by the defendant. However, theundated waiver did not provide the defendant with any notice that the hearing would beconducted in his absence, and there is no evidence in the record that the defendant was advised ofthe consequences of failing to appear (cf. People v Porter, 37 AD3d at 797; People vBrooks, 308 AD2d at 104). Defense counsel first learned of the written waiver on themorning of the SORA hearing and did not have an opportunity to speak with the defendant at anytime before the hearing. The People correctly concede that the Supreme Court should not havedenied defense counsel's application for an adjournment so that she could speak with thedefendant. The defendant's due process rights were violated when the Supreme Court proceededwith the SORA hearing in his absence (see People v Gonzalez, 69 AD3d at 819).[*2]
Accordingly, the order must be reversed and the matterremitted to the Supreme Court, Kings County, for a new risk level assessment hearing and a newdetermination, to be preceded by notice to the defendant in accordance with Correction Law§ 168-n (3) (see People vBrooksvasquez, 24 AD3d 644 [2005]).
In light of this determination, the defendant's remaining contention need not be reached.Balkin, J.P., Chambers, Hall and Austin, JJ., concur.