SORA Determination without Board Recommendation Okay When Defendant Released Same Day as He Was Sentenced

The Third Department determined the SORA court could make a SORA level assessment without a recommendation from the Board of Examiners of Sex Offenders.  The facts of the case did not fall into any of the categories listed in the SORA statute which allows an assessment without a Board recommendation when the defendant is not incarcerated and requires a Board assessment before discharge when the defendant is incarcerated.  Here the defendant was released from incarceration on the day he was convicted. In holding the SORA properly made the assessment in the absence of a Board recommendation, the Third Department wrote:

Although SORA charges the Board with responsibility for making a risk level recommendation relative to incarcerated offenders, the ultimate responsibility for the risk level determination  is vested  in the  sentencing  court, which  “‘in the exercise of its discretion, may depart from [the Board’s] recommendation and determine the sex offender’s risk level based upon  the facts and circumstances that appear in the record'”…. In our view, this judicial obligation necessarily includes the authority to determine the appropriate procedure for a  risk level determination where,  as  here, the circumstances are not fully addressed by the SORA statutory scheme. This conclusion is supported by the statutory provisions addressing failures by  the  Board  to complete its statutory obligation; where the Board fails to issue a timely recommendation, SORA  provides that the court must nonetheless make  a risk level determination and, if it cannot do  so before the offender is discharged, must “expeditiously complete the hearing  and  issue its determination”  after his or  her  release (Correction Law § 168-l [8]). In effect, that is the procedure that County Court followed here.  People v Grimm, 104233, 3rd Dept, 6-6-13