| People v Rodriguez |
| 2013 NY Slip Op 00117 [102 AD3d 457] |
| January 10, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Julio Rodriguez, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Karinna M. Arroyo of counsel),for respondent.
Order, Supreme Court, New York County (Cassandra Mullen, J.), entered on orabout June 22, 2011, which adjudicated defendant a level three sex offender and asexually violent offender pursuant to the Sex Offender Registration Act (Correction Lawart 6-C), affirmed, without costs.
Defendant argues that the court's notice, in writing, of the date of the hearing, waslate by one day. However, defendant never argued at the hearing that he had not beenprovided the 20-day notice required by Correction Law § 168-n (3). In any event,defendant cannot establish that the court did not afford him an opportunity to respond tothe People's application.
Defendant's adjudication satisfied the requirements of due process and CorrectionLaw § 168-n (3). In that regard, the court properly exercised its discretion indenying defendant's request for a lengthy adjournment to obtain additional informationabout his prison record. A court has considerable discretion to control its calendar(see e.g. People v Coppez, 93 NY2d 249, 252 [1999]; People v Sherard, 73 AD3d537 [1st Dept 2010], lv denied 15 NY3d 707 [2010]), and "defendant failedto demonstrate how delaying the hearing would permit him to obtain documents relevantto the determination of his sex offender level" (People v Sherard, 73 AD3d at537). In any event, given the remarkably strong case for adjudication as a level threeoffender, defendant was not prejudiced by the court's denial of an adjournment or by anyother alleged procedural defects (see Sherard, 73 AD3d at 537). Significantly,there was ample basis for the court's upward departure, regardless of defendant's prisonrecord (id.).
We have considered and rejected defendant's remaining arguments.Concur—Mazzarelli, J.P., Sweeny and Renwick, JJ.
Moskowitz and Freedman, JJ., dissent in a memorandum by Freedman, J., as follows:I respectfully dissent because I believe that the People failed to comply with the statutorynotice requirement in the Sex Offender Registration Act (SORA), and I would remandthe matter back to Supreme Court for a new risk level assessment hearing anddetermination, preceded by notice to both defendant and counsel in accordance with thestatute.[*2]
New York Correction Law § 168-n (3)specifically states: "At least twenty days prior to the determination proceeding, thesentencing court shall notify the district attorney, the sex offender and the sex offender'scounsel, in writing, of the date of the determination proceeding and shall also provide thedistrict attorney, the sex offender and the sex offender's counsel with a copy of therecommendation received from the board and any statement of the reasons for therecommendation received from the board."
In this case, the statutory requirements were not met and thus due process was notsatisfied. The parties agree that a letter dated June 3, 2011 was sent to defense counsel,notifying her that Supreme Court had sent defendant a copy of the board'srecommendation and scheduled a SORA proceeding on June 22, 2011. This letter,however, falls short of the 20-day notice required in the statute.
Given that Supreme Court failed to fulfill the statutory requirements, defendantshould have been granted the adjournment requested by counsel (see People v Brooksvasquez,24 AD3d 644, 644 [2d Dept 2005] [defendant was entitled to a new assessmenthearing when the due process requirements of Correction Law § 168-n (3) werenot satisfied]). An adjournment could have easily remedied the failure to provide theminimum notice required by the statute and would have adequately protected defendant'srights (see People vWarren, 42 AD3d 593, 594 [3d Dept 2007], lv denied 9 NY3d 810[2007] [adjournment remedied a failure to provide the defendant with the required risklevel recommendation prior to the hearing]).