| People v Lashway |
| 2013 NY Slip Op 08556 [112 AD3d 1235] |
| December 26, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vSteven Lashway, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas Evanovich of counsel), forrespondent.
Stein, J. Appeal from an order of the County Court of Clinton County (McGill, J.),entered May 10, 2012, which denied defendant's application pursuant to Correction Law§ 168-o (2) for, among other things, reclassification of his risk level sexoffender status.
In 1990, defendant was convicted of three counts of rape in the second degree andwas sentenced to 10½ to 21 years in prison as a second felony offender (Peoplev Lashway, 187 AD2d 747 [1992], lv denied 81 NY2d 842 [1993]). In 2004,prior to his release from prison, defendant was designated as a risk level III sex offenderunder the Sex Offender Registration Act (see Correction Law art 6-C [hereinafterSORA]). He thereafter violated parole and was returned to prison. In June 2010,defendant applied to County Court for a modification of his risk level classificationpursuant to Correction Law § 168-o. After obtaining an updatedrecommendation from the Board of Examiners of Sex Offenders, County Court denieddefendant's request, without conducting a hearing. On appeal, this Court found thatdefendant was entitled to a hearing and remitted the matter to County Court for furtherproceedings (90 AD3d 1178 [2011], lv dismissed 18 NY3d 945 [2012]). CountyCourt thereafter received another updated recommendation from the Board and,following a hearing, once again denied defendant's application. Defendant now appealsand we affirm.
Correction Law § 168-o (2) provides a sex offender who is required toregister pursuant [*2]to SORA with the opportunity toperiodically seek a downward modification of his or her risk level classification.However, the burden falls upon the sex offender to establish by clear and convincingevidence that a modification is warranted (see Correction Law §168-o [2]), and the trial court's determination will not be disturbed absent anabuse of discretion (see Peoplev Wright, 78 AD3d 1437, 1438 [2010]). Here, in support of his application for amodification to risk level II, defendant argued that (1) he did not pose a danger to societybecause of his deteriorating health, (2) he had completed various programs whileincarcerated including, among others, a sex offender treatment program, (3) his instantoffenses did not involve the use of force, (4) he had not committed a sex offense in morethan two decades, and (5) his current risk level assessment makes him a target ofharassment and assaults while incarcerated. None of these claims is persuasive.
It is significant to note that the 2004 risk assessment instrument applied apresumptive "override" to risk level III based upon defendant's prior felony convictionfor a sex crime (see Sex Offender Registration Act: Risk Assessment Guidelinesand Commentary at 3-4 [2006]). In addition, since the time of his classification,defendant was found to have a mental abnormality as defined in the Sex OffenderManagement and Treatment Act (see Mental Hygiene Law art 10) and wasconfined to a psychiatric center. While so confined, defendant violated his parole byassaulting a staff member at a state facility, which led to his reincarceration. Thisundercuts his claim that his physical ailments prevent him from being a risk to thecommunity. Moreover, the record reflects that, during his incarceration, defendant wascharged with multiple disciplinary infractions and was discharged from institutionalprograms due to poor participation. Under these circumstances, we cannot conclude thatCounty Court's denial of defendant's application for a downward modification was anabuse of that court's discretion.
Defendant's claim that County Court erred by denying his request to adjourn thehearing is similarly unavailing. Shortly before the hearing, defendant submitted toCounty Court a proposed order requiring, as pertinent here, that the Clinton CountyDistrict Attorney's office and the Board show cause why the Board should not bedirected to deliver to the court on the date of the risk level modification hearing certifiedcopies of all documents that the Board listed in its July 2010 and March 2012 updatedrecommendations. The Board provided the vast majority of the documents sought withinapproximately one week of its receipt of the order to show cause and six days prior to thehearing[FN1]and explained that the remainder of the documents were in a file that had to be retrievedfrom a storage facility, which might take several weeks. This explanation was notdisputed by defendant. However, when defendant appeared for the hearing, he requestedan adjournment pending his receipt of the remaining documents,[FN2]which County Court denied.[*3]
Defendant argues, and the dissent agrees, thatbecause he was not provided with all of the requested documents prior to the hearing, hewas unable to controvert the evidence relied upon by the Board in making its updatedrecommendation. However, we note that the Board's recommendation merely listed thesubject documents as having been "reviewed" by the Board; the Board did not explicitlyrely on them or even mention their contents in setting forth the basis for itsrecommendation. More significantly, County Court was not bound by the Board'srecommendation as to whether to modify defendant's risk assessment level (seegenerally Matter of VanDover v Czajka, 276 AD2d 945, 946 [2000]; Matter ofNew York State Bd. of Examiners of Sex Offenders v Ransom, 249 AD2d 891, 892[1998]), and there is no evidence—nor does defendant argue—that CountyCourt was in possession of, let alone considered, the subject documents in making itsdetermination.[FN3]Instead, the court based its denial of defendant's application on the finding that defendanthad a mental abnormality, his violation of parole, his assaultive behavior while incustody and the presumptive override resulting from his prior felony conviction of a sexcrime. Stated otherwise, County Court determined that defendant failed to meet hisburden of establishing by clear and convincing evidence that the claims made in hisapplication warranted a modification of his risk assessment level.
We do not take issue with the argument that defendant was entitled to discovery ofthe materials in question. However, all discovery is subject to certain limitations and thecourt has "considerable discretion to supervise the discovery process" (Kropp v Town of Shandaken,91 AD3d 1087, 1092 [2012] [internal quotation marks and citation omitted]). In ourview, the question before us distills to whether County Court abused its discretion inrefusing to adjourn the hearing in order for defendant to belatedly gain access to therequested documents. In this regard, County Court's decision to deny defendant's requestmust be evaluated with full consideration of the attendant circumstances before the court,including the timeliness thereof (see generally People v Peterkin, 81 AD3d 1358, 1359[2011], lv denied 17 NY3d 799 [2011]), and we cannot agree that reversal isrequired based solely on the fact that defendant did not obtain the requested materialsprior to the hearing.
Significantly, the documents at issue were referenced in the Board's July 2010updated recommendation, of which defendant had possession since August 2010. InJanuary 2012, one month after this Court held that defendant was entitled to a hearing,County Court appointed counsel for defendant and directed the Board to complete asecond updated recommendation. Nonetheless, defendant waited until April2012—only a few weeks before the scheduled hearing—to request thematerials, and it was not until the actual day of the hearing that defendant's counselbrought to County Court's attention that all of the documents had not been provided andrequested an adjournment. We can discern no reasonable excuse for defendant'sprotracted delay in seeking the documents. The position advanced by defendant andaccepted by the dissent—that [*4]County Courtwas obligated to ignore this delay and adjourn the hearing—unduly subverts thecourt's discretion in evaluating adjournment requests.
We disagree with the dissent's conclusion that County Court's denial of defendant'sadjournment request operated to deprive him of due process. In an initial SORAdetermination, the burden is on the People to establish the facts supporting theappropriate risk level (see Correction Law § 168-n [3]). The specificrequirements necessary to satisfy a defendant's due process rights in that context are wellestablished (see Doe v Pataki, 3 F Supp 2d 456, 471-472 [1998]; People v Gutierrez-Lucero,103 AD3d 89, 98 [2012], lv dismissed, 20 NY3d 1094 [2013]; seealso Correction Law § 168-n [3]). However, the instant proceeding was areclassification proceeding, in which the initial burden was placed upon defendant to setforth facts supporting his modification application (see Correction Law §168-o [2]). Due process is "a flexible concept" (People v David W., 95NY2d 130, 136 [2000]) and a defendant's due process rights in this context are similar,but not identical to, the rights of a defendant in an initial risk assessment (seeCorrection Law § 168-o [4]; see also People v Lashway, 90 AD3d 1178, 1178 [2011],lv dismissed 18 NY3d 945 [2012]). Here, County Court complied with thestatutory requirements and defendant was neither denied the ability to offer relevantmaterials in support of his application nor prevented from defending himself against anyevidence or documentation relied upon by County Court in deciding suchapplication.[FN4]
In light of the foregoing, and particularly considering the overwhelming evidence inthe record mitigating against a modification, we find that County Court did not abuse itsdiscretion by denying defendant's request for an adjournment of the hearing under thecircumstances here (see Peoplev Rodriguez, 102 AD3d 457, 457 [2013], affd 21 NY3d 1030 [2013];People v Santiago, 89AD3d 911, 911 [2011], lv denied 18 NY3d 806 [2012]; People v Di John, 48 AD3d1302, 1303 [2008]). To the extent not specifically addressed herein, defendant'sremaining claims have been considered and found to be either unpreserved or lacking inmerit.
Peters, P.J., and McCarthy, J., concur.
Spain, J. (dissenting). Because I find that defendant was deprived of due process oflaw by County Court's failure to abide defendant's motion, made prior to hisreclassification hearing, for access to copies of all of the records that the Board ofExaminers of Sex Offenders reviewed and listed in making its updated recommendationsstrongly opposing his request for a downward reclassification of his risk levelclassification, I would reverse the denial of defendant's application to modify hisclassification and remit for a rehearing. Accordingly, while expressing no opinion on themerits of defendant's application for reclassification, I respectfully dissent.
Unlike the initial sex offender classification, for which the People bear the burden of[*5]proof (see Correction Law § 168-n [3];People v Parker, 62 AD3d1195, 1196 [2009], lv denied 13 NY3d 704 [2009]), it is the defendant who"bear[s] the burden of proving the facts supporting the requested modification by clearand convincing evidence" (Correction Law § 168-o [2]). Under the SexOffender Registration Act (see Correction Law art 6-C [hereinafter SORA]), theBoard "is charged with the responsibility of making a recommendation to the sentencingcourt concerning a sex offender's risk of recommitting a sexual offense based uponcertain guidelines" (Matter of VanDover v Czajka, 276 AD2d 945, 946 [2000];see Correction Law § 168-l [6]). The Board is similarly required toprovide an updated report, upon request of the sentencing court, to aid in its resolution ofpetitions under Correction Law § 168-o to modify a classification(see Correction Law §§ 168-l [7]; 168-o [4]). Whilethe sentencing court, of course, "is not bound by the recommendation of the Board and,in the exercise of its discretion, may depart from that recommendation and determine thesex offender's risk level based upon the facts and circumstances that appear in the record"(Matter of New York State Bd. of Examiners of Sex Offenders v Ransom, 249AD2d 891, 891-892 [1998]; seePeople v Douglas, 18 AD3d 967, 968 [2005], lv denied 5 NY3d 710[2005]), in practice, the Board's recommendation is often among the most influentialfactors considered by a sentencing court in making its classification determination. Thus,in order to attempt to persuade the court and meet its burden of proof on a petition forreclassification, the defense will frequently focus its challenge on the underlying basisfor the Board's adverse recommendation.
Here, despite an uncontested prehearing request for materials listed by the Board inits update, defendant was not afforded access to two of the seven documents listed in theBoard's 2012 updated recommendation against reclassification. While SORA isessentially civil in nature (seePeople v Pettigrew, 14 NY3d 406, 408 [2010]), falling somewhere between acriminal proceeding and an administrative one (see Doe v Pataki, 3 F Supp 2d456, 470 [SD NY 1998]), "a 'SORA determination undeniably has a profound impact ona defendant's liberty interest' " (People v Gutierrez-Lucero, 103 AD3d 89, 98 [2012], lvdismissed 20 NY3d 1094 [2013], quoting People v Brooks, 308 AD2d 99,105 [2003], lv denied 1 NY3d 502 [2003]; see People v David W., 95NY2d 130, 137 [2000]; Doe v Pataki, 3 F Supp 2d at 466-468, 469-470). Aswith an initial determination, prior to which defendant is entitled to prehearing discovery(see Correction Law § 168-n [3]), I believe that principles of due processrequire that he be afforded access—through prehearing discovery—to allmaterial considered on or influencing his reclassification petition (see CorrectionLaw § 168-n [3]). Defendant's right to submit "any information relevant to thereview" of his reclassification request (Correction Law 168-o [4]) would, inmany cases, be rendered meaningless if he were not entitled to review and address allmaterials considered by the Board. In my view, depriving defendant of access to allrecords reviewed and listed by the Board in making its reclassification recommendationconstituted, by any measure, a deprivation of defendant's important right to discovery of"all matter material and necessary" to his reclassification petition (CPLR 3101 [a]). Italso deprived him of his important due process right to discover, confront and respond toall material that may have influenced the Board's recommendation, on which the courtexpressly relied (see People v David W., 95 NY2d at 137-138; Doe vPataki, 3 F Supp 2d at 472-477). I do not find it to be dispositive that the court itselfdid not possess or rely upon the withheld materials, given that the court did expressly relyon the Board's recommendation, which did consider the materials.
Finally, under Correction Law § 168-m, which requires disclosure to theBoard of myriad "relevant information pertaining to a sex offender" to assist in theBoard's mandatory recommendation in an initial classification proceeding, allowance ismade for the "[B]oard's file" to be sealed; it also provides, among other things, that "inany subsequent proceeding in which [*6]the sex offenderwho is the subject of the sealed record is a party and which requires the [B]oard toprovide a recommendation to the court pursuant to this article"—presumablyincluding reclassification petition proceedings, as here—"such sealed record shallbe available to the sex offender." The clear import of that provision is that a sex offender,such as defendant herein, is entitled, in all SORA proceedings, to discovery of and accessto materials in the Board's file that may have influenced its penultimate recommendation.Moreover, "[t]he need for expediency cannot overshadow the fact that a critical decisionwas being made about defendant [under SORA]" (People v David W., 95 NY2dat 139). Therefore, I find that County Court abused its discretion in refusing to grantdefendant an adjournment so that the requested documents could be obtained, whichdenial operated to deprive him of a fair hearing (cf. People v Warren, 42 AD3d 593, 594 [2007], lvdenied 9 NY3d 810 [2007]). While it may be debatable whether the denial of thismaterial operated to affect the court's ultimate determination, given our inability toreview the materials, which are not in the record, and the highly discretionary nature ofthese decisions, I cannot agree that the error was harmless or overlook the deleteriousprecedential value of an affirmance in this case.
Ordered that the order is affirmed, without costs.
Footnote 1: While the recordreflects that County Court signed the order to show cause, it is bereft of any indicationthat the court rendered a decision or order thereon. However, it appears that the Boardtreated the order to show cause as a subpoena.
Footnote 2: Although defendantdoes not itemize the documents that he did not receive, it appears—based upon therecord before us—that the only two documents at issue are a July 2010 emailcorrespondence with the Division of Parole and a July 2010 email correspondence withthe Attorney General's office.
Footnote 3: The dissent accuratelynotes that County Court indicated that it reviewed the evidence before it, which wouldinclude the Board's updated recommendation. However, in both its oral and writtendecisions, County Court expressly enumerated the facts upon which it relied indetermining that a modification was not warranted—all of which defendant had anopportunity to challenge—and there is no question that the court reached its ownconclusion based upon facts and circumstances in the record separate and apart from theBoard's recommendations.
Footnote 4: We further note thatdefendant may make a new application for reclassification (see Correction Law§ 168-o [2]) and, if desired, may obtain the omitted information inconnection therewith.