People v. Souverain

• Decision Date: 02 March 2016
• Parties: PEOPLE of State of New York, respondent, v. Kinsky SOUVERAIN, appellant.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 765
25 N.Y.S.3d 683

PEOPLE of State of New York, respondent,
v.
Kinsky SOUVERAIN, appellant.

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

March 2, 2016.

25 N.Y.S.3d 684

Seymour W. James, Jr., New York, N.Y. (Arthur H. Hopkirk of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.

RANDALL T. ENG, P.J., REINALDO E. RIVERA, L. PRISCILLA HALL, and SYLVIA O. HINDS–RADIX, JJ.

Appeal by the defendant from an order of the Supreme Court, Kings County (Foley, J.), dated November 15, 2012, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is reversed, on the law and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a new hearing and new determination thereafter in accordance herewith.

" ‘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, 956 N.Y.S.2d 131 ).

Here, the defendant appeared before the Supreme Court with his counsel, Carol Schajer, on October 19, 2012. Schajer requested, and was granted, an adjournment of the SORA hearing so that she could obtain additional papers, and the defendant indicated his desire to waive his appearance at the next court date, during which the SORA hearing was supposed to take place. According to Schajer, the defendant understood that she would appear in his absence and request a downward departure to a level one designation. Following Hurricane Sandy, the matter was adjourned on two more occasions. The defendant did not make any appearance after the October 19, 2012, proceeding, and neither did Schajer. Instead, on November...