People v. Marquez

• Decision Date: 21 January 2015
• Citation: 2015 N.Y. Slip Op. 00511,124 A.D.3d 741,998 N.Y.S.2d 669 (Mem)
• Parties: PEOPLE of State of New York, respondent, v. Yancy MARQUEZ, appellant.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 741
998 N.Y.S.2d 669 (Mem)
2015 N.Y. Slip Op. 00511

PEOPLE of State of New York, respondent
v.
Yancy MARQUEZ, appellant.

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

Jan. 21, 2015.

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.

Opinion

124 A.D.3d 742

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 A.D.3d 961, 961, 942 N.Y.S.2d 550, quoting People v. Gonzalez, 69 A.D.3d 819, 819, 892 N.Y.S.2d 774 ; see Correction Law § 168–n[3] ; People v. Phillips, 110 A.D.3d 1050, 1050, 974 N.Y.S.2d 260 ; People v. Gutierrez–Lucero, 103 A.D.3d 89, 99, 956 N.Y.S.2d 131 ; People v. Ginyard, 101 A.D.3d 1095, 1095, 958 N.Y.S.2d 154 ; People v. Arrahman, 83 A.D.3d 680, 680, 919 N.Y.S.2d 885 ). 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...