People v. Maus

• Decision Date: 28 June 2018
• Docket Number: 522141
• Citation: 80 N.Y.S.3d 509,162 A.D.3d 1415
• Parties: The PEOPLE of the State of New York, Respondent, v. James MAUS, Appellant.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 1415
80 N.Y.S.3d 509

The PEOPLE of the State of New York, Respondent,
v.
James MAUS, Appellant.

522141

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

Calendar Date: June 1, 2018
Decided and Entered: June 28, 2018

Arthur G. Dunn, Troy, for appellant.

Joel E. Abelove, District Attorney, Rensselaer (Jacob B. Sher of counsel), for respondent.

Before: McCarthy, J.P., Lynch, Devine, Clark and Rumsey, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeal from an order of the County Court of Rensselaer County (Young, J.), entered September 4, 2015, which classified

80 N.Y.S.3d 510

defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.

In 2015, defendant pleaded guilty to sexual abuse in the first degree and was sentenced to a prison term of two years, to be followed by six years of postrelease supervision. The conviction stemmed from defendant's sexual contact with a six-year-old girl. In anticipation of defendant's release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument (hereinafter RAI) in accordance with the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA] ) that presumptively classified defendant as a risk level one sex offender (55 points). At a subsequent SORA hearing, the People recommended an upward departure to risk level two based upon the defendant's abuse of the familial relationship. County Court denied the People's request for an upward departure but assigned defendant an additional 20 points under risk factor 4 based upon a continuing course of sexual misconduct. As a result, County Court assigned defendant 75 points, classified defendant as a risk level two sex offender and designated him a sexually violent offender. Defendant now appeals.

Defendant contends that County Court's sua sponte assessment of 20 points under risk factor 4 was not supported by clear and convincing evidence and that it deprived the defendant of a meaningful opportunity to respond to that assessment.¹ Because we agree with the latter of these contentions, we reverse. "A defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment" ( People v. Griest, 143 A.D.3d 1058, 1059, 40 N.Y.S.3d 576 [2016] [citations omitted]; see Correction Law § 168–d [3 ]; People v. David W., 95 N.Y.2d 130, 136–140, 711 N.Y.S.2d 134, 733 N.E.2d 206 [2000] ; People v. Hackett, 89 A.D.3d 1479, 1480, 933...