People v. Phillips

• Citation: 2013 N.Y. Slip Op. 07021,974 N.Y.S.2d 260,110 A.D.3d 1050
• Parties: PEOPLE of State of New York, respondent, v. Marquis PHILLIPS, appellant.
• Decision Date: 30 October 2013
• Court: New York Supreme Court Appellate Division

110 A.D.3d 1050
974 N.Y.S.2d 260
2013 N.Y. Slip Op. 07021

PEOPLE of State of New York, respondent,
v.
Marquis PHILLIPS, appellant.

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

Oct. 30, 2013.

Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant.

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

Appeal by the defendant from an order of the Supreme Court, Kings County (Tomei, J.), dated March 4, 2011, 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 *261Court, 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. 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). “ ‘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. Jackson, 94 A.D.3d at 961, 942 N.Y.S.2d 550, quoting People v. Porter, 37 A.D.3d 797, 797, 832 N.Y.S.2d 53;see People v. Gutierrez–Lucero, 103 A.D.3d at 99, 956 N.Y.S.2d 131;People v. Arrahman, 83 A.D.3d at 680, 919 N.Y.S.2d 885;People v. Brooks, 308 A.D.2d 99, 106, 763 N.Y.S.2d 86).

Here, the record contains no evidence that the defendant received notice of the hearing date. Thus, as the People correctly concede, the defendant's due process rights were violated. 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, the defendant's...