People v. Gutierrez–Lucero

• Decision Date: 19 December 2012
• Parties: PEOPLE of State of New York, respondent, v. Gaspari GUTIERREZ–LUCERO, appellant.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 89
956 N.Y.S.2d 131
2012 N.Y. Slip Op. 08708

PEOPLE of State of New York, respondent,
v.
Gaspari GUTIERREZ–LUCERO, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 19, 2012.

[956 N.Y.S.2d 132]

Lynn W.L. Fahey, New York, N.Y. (William Kastin of counsel; David Lowry on the brief), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and LEONARD B. AUSTIN, JJ.

RIVERA, J.P.

[103 A.D.3d 90]“Auditur et altera pars,” or “The other side shall be heard as well,” are words attributed to Lucius Annaeus Seneca, the Roman philosopher, in the tragedy Medea. This concept is encompassed in the legal principle known as “due process.” The instant appeal involves fundamental due process considerations in the context of Correction Law article 6–C, the Sex Offender Registration Act (hereinafter SORA). Particularly, we are presented with the issue of whether the defendant, a sex offender facing risk level classification under SORA, was deprived of his due process rights, where he did not receive notice of the SORA hearing, he did not waive his right to be present thereat, and the hearing was held in his absence. The Supreme Court determined, and the People presently take the position on appeal, that the defendant's due process rights were not violated because he was ultimately adjudicated a level one sex offender, the lowest risk level assignable under SORA. Contrary thereto, for the reasons that follow, the defendant's due process rights were violated and thus, we reverse the order appealed from.

I. Factual and Procedural Background

In 2003, the defendant was charged under Kings County Superior Court Information

[956 N.Y.S.2d 133]

No. 5518/2003, with attempted sodomy in the first degree (Penal Law §§ 110.00, 130.50), relating to the sexual abuse of his girlfriend's then-six-year-old daughter. The defendant apparently waived his right to be prosecuted by indictment. He pleaded guilty to the crime charged and was sentenced to a determinate term of imprisonment consisting of 3 1/2 years, to be followed by five years' postrelease supervision.

The record on appeal includes a “NOTICE” dated September 2, 2010, pursuant to Correction Law article 6–C, which was purportedly sent by the Supreme Court, Kings County, to the defendant at the Marcy Correctional Facility, directing him to appear before the Supreme Court on October 18, 2010. A copy [103 A.D.3d 91]of this notification was also apparently sent to assigned defense counsel Carol Schajer. Further, in an “order to produce,” entered September 2, 2010, the Supreme Court directed the Warden or Superintendent of Marcy Correctional Facility to produce the defendant for a SORA hearing on October 18, 2010, at 9:30 A.M.

The Case Summary and Risk Assessment Instrument

In a case summary dated August 26, 2010, the Board of Examiners of Sex Offenders (hereinafter the Board) stated that the defendant apparently entered the United States “illegally circa 1992,” and that the Bureau of Immigration and Customs Enforcement had “lodged a deportation order against him.” The Board added, “it is possible that he may be deported to his native country of Mexico.”

In a risk assessment instrument dated August 27, 2010, the defendant was assessed a total of 90 points, which placed him in a presumptive level two category. The Board recommended that a departure from the presumptive risk level was not warranted.

The January 6, 2011, SORA HEARING

On January 6, 2011, the People and defense counsel appeared before the Supreme Court, Kings County, for a SORA hearing. The defendant was not present at this hearing.

At the commencement of the hearing, the People indicated that they had provided the Supreme Court and defense counsel with “documentation” from U.S. Immigration and Customs Enforcement showing that the defendant was deported to Mexico on September 3, 2010. In this regard, a letter addressed to Assistant District Attorney (hereinafter ADA) Allegra Santomauro from U.S. Immigration and Customs Enforcement Deportation Officer Lukasz Kubicz, dated October 29, 2010, states, in pertinent part, as follows:

“As per your office[']s inquiry regarding [the defendant], ICE [Immigration and Customs Enforcement] official records shows that the subject was removed from the United States on September 03, 2010 from Harlingen, TX to Mexico. Removal was witnessed and confirmed by ICE/ERO officers. For immigration purposes this case is closed.”

Thereafter, the Supreme Court stated that “the presence of the defendant” was “[w]aived for [purposes of] the hearing,” adding “[w]e will do the hearing.” The People, however, interjected:

[103 A.D.3d 92]“Your Honor, I want to make a record for the Court. I checked with the Department of Corrections, there is no waiver in the file. I have also spoken with our Appeals Bureau and as such without an effective waiver it is the People's position that this hearing cannot happen because the defendant did not waive his right to be present [emphasis added].”

The court asked, “[s]o how do I get him here?” The court then stated:

[956 N.Y.S.2d 134]

“He could be back in the country right now you [sic] without a requirement to register as a sex offender, I am going to go proceed with the hearing and then you could concede error on an appeal if you wish to. But I am not going to leave this probationer, I should say sex offender who has been deported from this country after serving a prison sentence for a sexual act against a youngster under ten years of age without a designation as a sex offender which would require him to register if he came back into the country.”

At this point, defense counsel registered an objection stating, “I never had contact with this client and to my understanding he has never signed a waiver [of his right to be present at the SORA hearing]. And without my client's input into this case I am unable to make effective arguments on his behalf.”

The People reiterated to the court that they did not “choose to proceed” with the hearing. Specifically, the ADA asserted, “I don't know how the defendant would know he is required to register if he is not present for this hearing.”

Notwithstanding the foregoing, the court continued, as follows:

“The Court rules that his being deported amounts to a de facto waiver of this [sic] presence at the hearing and I am going to proceed and I will make my record then you can have your objection and you could find [sic] notice of appeal. We can litigate this issue.”

Defense counsel thereafter stated:

“What I want to put on the record is that I was assigned this case on September 16th [2010]. I wrote a letter to my client at the facility. I was informed I was at—I am handing up a copy of the returned envelope.[103 A.D.3d 93]I am asking it be marked Defense A and moved into evidence as Defense A. There is an indication written in red ink 8/27/10, paroled or liens to immigration. So he was sent to immigration even before I was assigned to this case.”

The court then made the following statements:

“I have a letter that is part of, I will make part of the hearing I am about to conduct.

“From the United States Immigration Customs Enforcement Service dated October 29, 2010 indicating that [the defendant] was removed from the United States on September 3, 2010 from Harlingen, H–A–R–L–I–N–G–E–N, Texas to Mexico. Removal was witnessed and confined [sic] by ICU Immigrations Customs Enforcement officers for immigration purposes. The case is closed. The court has a file which contains a risk level assessment instrument and a case summary. The risk factors that are designated by the agency indicates that the defendant scores at 90 points. The only one that I have difficulty with is behavior while confined which is post offense. They assessed ten points for his unsatisfactory performance for behavior while in custody. That is not reflected in the record. The Court adjudicates that those ten points should not be assessed. All the other factors are can [sic] prove [sic] by clear and convincing evidence.

“The Court makes a determination of a risk level assessment point total of 80 points which still places the defendant at a level two sexually violent offender. That is the ruling of the Court. I will sign a ruling to that effect.”

The January 14, 2011, SORA Hearing

On January 14, 2011, the People and defense counsel again appeared before the Supreme Court. The defendant was not

[956 N.Y.S.2d 135]

present. At this proceeding, the court stated:

“This was a risk level assessment hearing that was before me on January 6th. The People indicated to me that they would not go forward with the hearing because the defendant had been deported and that the court could not have jurisdiction over him.

[103 A.D.3d 94]“However, it [was] the court's opinion that just based on the underlying conviction, if he were here he could not contest the fact that I could adjudge him a risk level 1 offender based on the conviction by itself.

“Balancing the interest of protection of the public and noting that the defendant was deported to the country of Mexico and the well-known ability of people to return to the United States from the country of Mexico, I'm going to in this case, over the objection of both sides, adjudge the defendant a level 1 offender as a risk level with the ability to open up the proceeding to a higher, to a possible higher level should he return to the United States illegally.

“And I'm adjusting my—I've done some research and I tend to agree with the People that I would not have the jurisdiction without him being present to indicate the factors that would raise him to a 2 or a 3.

“However, just based on the underlying conviction, I feel that I am balancing the interest of the due process rights of the defendant with the interest and the protection of the public, having him require to register...