People v. Neish

• Decision Date: 22 March 2001
• Citation: 281 A.D.2d 817,722 N.Y.S.2d 815
• Parties: (A.D. 3 Dept. 2001) THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v CRAIG R. NEISH, Respondent. 12293 : THIRD JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 815

722 N.Y.S.2d 815 (A.D. 3 Dept. 2001)

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v CRAIG R. NEISH, Respondent.

12293

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

March 22, 2001

Joseph Cawley, Binghamton, for appellant.

Gerald F. Mollen, District Attorney (Robin S. Engler of counsel), Binghamton, for respondent.

Before: Mercure, J.P., Spain, Carpinello, Rose and Lahtinen, JJ.

Rose, J.

Appeal from an order of the County Court of Broome County (Smith, J.), rendered April 13, 2000, which classified defendant as a risk level I sex offender pursuant to the Sex Offender Registration Act.

In December 1999, defendant was convicted on his plea of guilty to one count of sexual abuse in the first degree arising out of sexual contact with his five-year-old daughter, and he was subsequently sentenced to a six-month jail term and five years of probation. In April 2000, a risk assessment hearing was held pursuant to the Sex Offender Registration Act (Correction Law art 6-C) (hereinafter SORA). At the hearing, the prosecution requested an opportunity to be heard in order to argue that defendant should be assessed a level II risk for a repeat sex offense. County Court permitted the prosecution to place its position on the record but then denied its request and determined defendant to be risk level I sex offender. The prosecution appeals.

While we agree with the prosecution's contention that SORA was amended prior to defendant's risk assessment hearing to, inter alia, afford the District Attorney the right to be heard in determining the risk level to be assigned (see, L 1999, ch 453, § 6 [eff. Jan. 1, 2000]), we hold nevertheless that County Court did not err by denying the request or by assessing defendant as a risk level I. Rather, we are persuaded that the prosecution's right to be heard was waived by its failure to provide the court and defendant with prior notice of the assessment sought, and that County Court's determination of defendant's risk level has a substantial basis in the record.

As amended, SORA imposes on the prosecution the burden of proving the basis for a requested assessment by clear and convincing evidence. More to the point, it requires that the offender be afforded a prior written statement of the assessment sought by the prosecution and the reasons for seeking it (see, Correction Law § 168-d [3]). Without such notice, the offender's opportunity to be heard in response, which SORA...