People v. Montufar-Tez
| Decision Date | 30 June 2021 |
| Docket Number | 2019–06803 |
| Citation | 195 A.D.3d 1052,146 N.Y.S.3d 791 (Mem) |
| Parties | PEOPLE of State of New York, respondent, v. Mario MONTUFAR–TEZ, appellant. |
| Court | New York Supreme Court — Appellate Division |
195 A.D.3d 1052
146 N.Y.S.3d 791 (Mem)
PEOPLE of State of New York, respondent,
v.
Mario MONTUFAR–TEZ, appellant.
2019–06803
Supreme Court, Appellate Division, Second Department, New York.
Submitted—May 19, 2021
June 30, 2021
James D. Licata, New City, N.Y. (Lois Cappelletti of counsel), for appellant.
Thomas E. Walsh II, District Attorney, New City, N.Y. (Carrie A. Ciganek of counsel), for respondent.
HECTOR D. LASALLE, P.J., CHERYL E. CHAMBERS, ROBERT J. MILLER, COLLEEN D. DUFFY, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from an order of the County Court, Rockland County (Kevin F. Russo, J.), entered June 3, 2019, 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 County Court, Rockland County, for a new risk level assessment hearing and a new determination in accordance with Correction Law § 168–n(3).
The defendant pleaded guilty to rape in the first degree and was sentenced to a term of imprisonment. Prior to the defendant's release from prison, the County Court held a risk level assessment hearing under the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA). In addition to the points requested
by the Board of Examiners of Sex Offenders (hereinafter the Board) and the People, the court, sua sponte, assessed the defendant points under risk factor 4 (continuing course of sexual misconduct) and risk factor 15 (living or employment inappropriate). The court designated the defendant a level three sex offender. The defendant appeals.
The defendant's contention that his right to due process was violated when the County Court sua sponte assessed additional points during the risk level assessment hearing, which were not requested by either the People or the Board, is unpreserved for appellate review, since he did not object to the assessment of such points at the hearing (see CPL 470.05[2] ; People v. Velez, 100...
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People v. Thurmond
...his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment’ " ( People v. Montufar–Tez, 195 A.D.3d 1052, 1053, 146 N.Y.S.3d 791, quoting People v. Wilke, 181 A.D.3d 1324, 1325, 119 N.Y.S.3d 794 ). "[A] court's sua sponte departure from the Bo......
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...of additional points, and he had no meaningful opportunity to contest the imposition of those points (see People v. Montufar–Tez, 195 A.D.3d 1052, 1053, 146 N.Y.S.3d 791 ; People v. Manougian, 132 A.D.3d 746, 747, 17 N.Y.S.3d 507 ). Nevertheless, deducting 10 points from the total points as......
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... ... Under ... these circumstances, 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 thereafter ... (see People v Worley, 40 N.Y.3d at 136; People v ... Montufar-Tez, 195 A.D.3d 1052, ... ...
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