People v. Wilke

• Decision Date: 20 March 2020
• Docket Number: KA 19–00862,298
• Citation: 181 A.D.3d 1324,119 N.Y.S.3d 794
• Parties: The PEOPLE of the State of New York, Respondent, v. Dalton WILKE, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

181 A.D.3d 1324

119 N.Y.S.3d 794

The PEOPLE of the State of New York, Respondent,

v.Dalton WILKE, Defendant–Appellant.

298

KA 19–00862

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

Entered March 20, 2020

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT–APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Monroe County Court for further proceedings in accordance with the following memorandum: On appeal from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ), defendant contends, and the People correctly concede, that County Court violated his right to due process by sua sponte assessing points on a theory not raised by the Board of Examiners of Sex Offenders or the People (see People v. Chrisley , 172 A.D.3d 1914, 1915–1916, 99 N.Y.S.3d 569 [4th Dept. 2019] ; People v. Hackett , 89 A.D.3d 1479, 1480, 933 N.Y.S.2d 470 [4th Dept. 2011] ). The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment (see § 168–n [3]; People v. David W. , 95 N.Y.2d 130, 136–138, 711 N.Y.S.2d 134, 733 N.E.2d 206 [2000] ). Here, no allegations were made either in the risk assessment instrument (RAI) or by the People at the SORA hearing that defendant should be assessed 30 points under risk factor 3, and defendant learned of the assessment of the additional points under that risk factor for the first time when the court issued its decision (see Chrisley , 172 A.D.3d at 1916, 99 N.Y.S.3d 569 ; Hackett , 89 A.D.3d at 1480, 933 N.Y.S.2d 470 ).

Even assuming, arguendo, that the harmless error doctrine applies in this context (see People v. Baxin , 26 N.Y.3d 6, 11, 19 N.Y.S.3d 205, 41 N.E.3d 62 [2015] ), the error here cannot be deemed harmless inasmuch as we further agree with defendant that the court's alternative basis for the risk level determination also violated defendant's right to due process. The court stated that, if defendant were a presumptive level one risk, an upward departure to level two would be warranted based on certain aggravating factors stemming from the nature of the crimes. Because those factors were not...