People v. Jackson

• Decision Date: 17 April 2012
• Citation: 2012 N.Y. Slip Op. 02850,942 N.Y.S.2d 550,94 A.D.3d 961
• Parties: PEOPLE of State of New York, respondent, v. Lemar JACKSON, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02850

94 A.D.3d 961

942 N.Y.S.2d 550

PEOPLE of State of New York, respondent,

v.Lemar JACKSON, appellant.

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

April 17, 2012.

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

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

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.

Appeal by the defendant from an order of the Supreme Court, Kings County (Balter, J.), dated September 13, 2010, which, after a hearing, designated him a level three sexually violent 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 hearing and determination in accordance herewith.

“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. Gonzalez, 69 A.D.3d 819, 819, 892 N.Y.S.2d 774; see Correction Law § 168–n[3] ). “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; see People v. Brooks, 308 A.D.2d 99, 106, 763 N.Y.S.2d 86).

Here, the Supreme Court found that the defendant validly waived his right to appear at the SORA hearing based on an undated, written waiver, which was prepared by the New York State Department of Correctional Services (now known as the New York State Department of Corrections and Community Supervision) and purportedly signed by the defendant. However, the undated waiver did not provide the defendant with any notice that the hearing would be conducted in his absence, and there is no evidence in the record that the defendant was advised of the consequences of failing to appear ( cf. People v. Porter, 37 A.D.3d at 797, 832 N.Y.S.2d 53; People v. Brooks, 308 A.D.2d at 104, 763 N.Y.S.2d 86). Defense counsel first learned of the written waiver on the morning of the SORA hearing and did not have an opportunity to speak with the defendant at any time before the hearing. The People...