ENCARNACION, JOSUE, PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
393
KA 14-01242
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JOSUE ENCARNACION, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered June 10, 2014. The order determined that
defendant is a level one risk pursuant to the Sex Offender
Registration Act.
It is hereby ORDERED that said appeal is unanimously dismissed
without costs.
Memorandum: In appeal No. 1, defendant appeals from an order
determining that he is a level one risk pursuant to the Sex Offender
Registration Act ([SORA] Correction Law § 168 et seq.), but the only
issues raised on appeal concern the order in appeal No. 2, determining
that he is a sexually violent offender pursuant to SORA. We thus deem
defendant’s appeal from the order in appeal No. 1 abandoned (see
Ciesinski v Town of Aurora, 202 AD2d 984, 984). Defendant contends in
appeal No. 2 that Supreme Court erred in conducting the SORA hearing
in his absence. We agree. A sex offender has a due process right to
be present at a SORA hearing (see People v David W., 95 NY2d 130, 138-
140; People v Gonzalez, 69 AD3d 819, 819; see also § 168-n [3]), and
the court “violated the due process rights of defendant when it held
the SORA hearing in his absence without verifying that he had received
the letter notifying him of the date of the hearing and his right to
be present” (People v Distaffen, 71 AD3d 1597, 1598). We are thus
constrained to reverse the order and remit the matter to Supreme Court
for a new hearing and sexually violent offender determination in
compliance with Correction Law § 168-n (3).
Defendant’s remaining contentions in appeal No. 2 are moot in
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KA 14-01242
light of our determination therein.
Entered: April 29, 2016 Frances E. Cafarell
Clerk of the Court