People v. Marquez , 998 N.Y.S.2d 669 ( 2015 )

People v Marquez (2015 NY Slip Op 00511)

People v Marquez

2015 NY Slip Op 00511

Decided on January 21, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 21, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
THOMAS A. DICKERSON
SHERI S. ROMAN
JEFFREY A. COHEN, JJ.

2012-09334

[*1]People of State of New York, respondent,

v

Yancy Marquez, appellant.

Lynn W. L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Riviezzo, J.), dated October 12, 2012, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a new risk level assessment hearing and a new determination, to be preceded by notice to the defendant in accordance with Correction Law § 168-n(3).

" 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 Jackson, 94 AD3d 961, 961, quoting People v Gonzalez, 69 AD3d 819, 819; see Correction Law § 168-n[3]; People v Phillips, 110 AD3d 1050, 1050; People v Gutierrez-Lucero, 103 AD3d 89, 99; People v Ginyard, 101 AD3d 1095, 1095; People v Arrahman, 83 AD3d 680, 680). Under the particular circumstances of this case, the defendant's due process rights were violated when the hearing proceeded in his absence. Accordingly, we reverse the order and remit the matter to the Supreme Court, Kings County, for a new risk level assessment hearing and a new determination, to be preceded by notice to the defendant in accordance with Correction Law § 168-n(3).

In light of our determination, we need not reach the defendant's remaining contentions.

RIVERA, J.P., DICKERSON, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court