PEOPLE v. ERB (2009)

 Defendant appeals from an order 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 risk assessment 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 agreed with the Board's recommendation that an upward departure from defendant's presumptive risk level was warranted based on aggravating factors not taken into account by the RAI. Although defendant has not raised the issue, we conclude that his right to due process was violated based on the failure of the court to conduct a hearing before making its determination of defendant's risk level, as expressly required by Correction Law § 168-n(6).  “ ‘[T]he due process protections required for a risk level classification proceeding are not as extensive as those required in a plenary criminal or civil trial’ ” (People v. Brooks, 308 A.D.2d 99, 105, 763 N.Y.S.2d 86, lv. denied 1 N.Y.3d 502, 775 N.Y.S.2d 240, 807 N.E.2d 290, quoting Doe v. Pataki, 3 F.Supp.2d 456, 470).   Nevertheless, although defendant waived his right to appear in person and to submit materials, there is no indication in the record before us that he waived his right to a hearing (see generally People v. Costas, 46 A.D.3d 475, 848 N.Y.S.2d 643, lv. denied 10 N.Y.3d 716, 862 N.Y.S.2d 337, 892 N.E.2d 403).   Indeed, Correction Law § 168-n(6) requires that, “[i]f a sex offender, having been given notice ․ of the determination 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.   It does not provide that the failure to appear constitutes a waiver of the right to a hearing.   We therefore reverse the order and remit the matter to County Court for a hearing and new risk level determination in compliance with Correction Law § 168-n.

It is hereby ORDERED that the order so appealed from is unanimously reversed in the interest of justice and on the law without costs and the matter is remitted to Oneida County Court for further proceedings.

MEMORANDUM: