PEOPLE v. BARNEY (2019)

DECISION & ORDER

ORDERED that the order is reversed, on the law and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a new hearing and a new determination thereafter in accordance herewith.

The defendant's contention that he did not waive his right to be present at the hearing pursuant to the Sex Offender Registration Act (see Correction Law art 6–C;  hereinafter SORA) is unpreserved for appellate review (see People v. Poleun, 26 N.Y.3d 973, 974–975, 18 N.Y.S.3d 586, 40 N.E.3d 563).  Nonetheless, we reach the contention in the interest of justice.

A sex offender facing risk level classification under SORA has a due process right to be present at the SORA hearing (see People v. Souverain, 137 A.D.3d 765, 25 N.Y.S.3d 683;  People v. Gonzalez, 69 A.D.3d 819, 892 N.Y.S.2d 774).  “To establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown 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 A.D.3d 797, 797, 832 N.Y.S.2d 53).  Reliable hearsay evidence, such as an affidavit, is admissible to establish waiver (see People v. Brooks, 308 A.D.2d 99, 101, 763 N.Y.S.2d 86).  Here, the sole “evidence” that the defendant waived the right to be present was the statement by the court that it was informed off-the-record by the New York City Police Department Sex Offender Monitoring Unit that the defendant resided at an address in Manhattan and that notice of the hearing was sent to that address and not returned as undeliverable.  There was no evidence, hearsay or otherwise, that the defendant expressed a desire to forgo his presence at the hearing (cf. People v. Warrington, 19 A.D.3d 881, 797 N.Y.S.2d 622).  The fact that defense counsel had “no evidence to indicate” that the defendant did not receive notice of the hearing was not sufficient to indicate a waiver.

Accordingly, we reverse the order appealed from and remit the matter to the Supreme Court, Queens County, for a new hearing and a new determination thereafter, to be preceded by notice to the defendant in accordance with Correction Law § 168–n(3) (see People v. Souverain, 137 A.D.3d at 767, 25 N.Y.S.3d 683;  People v. Ginyard, 101 A.D.3d 1095, 1097, 958 N.Y.S.2d 154).

RIVERA, J.P., HINDS–RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.