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Burden Is on Defendant in SORA Reclassification Proceeding/Fact that Defendant Was Not Provided With All the Documents Reviewed by the Board Did Not Violate Due Process

In a SORA reclassification proceeding, the Third Department, over a dissent, determined the defendant was not deprived of due process by the SORA court’s denial of an adjournment for the purpose gathering all the documents reviewed by the Board of Examiners of Sex Offenders in making its updated recommendation.  The Third Department noted that, unlike in the initial SORA proceeding where the burden of proof is on the People, in a reclassification proceeding the burden is on the defendant:

Correction Law § 168-o (2) provides a sex offender who is required to register pursuant to SORA with the opportunity to periodically seek a downward modification of his or her risk level classification.  However, the burden falls upon the sex offender to establish by clear and convincing evidence that a modification is warranted (see Correction Law § 168-o [2]), and the trial court’s determination will not be disturbed absent an abuse of discretion… . * * *

We do not take issue with the argument that defendant was entitled to discovery of the materials in question.  However, all discovery is subject to certain limitations and the court has “considerable discretion to supervise the discovery process” … .  In our view, the question before us distills to whether County Court abused its discretion in refusing to adjourn the hearing in order for defendant to belatedly gain access to the requested documents. In this regard, County Court’s decision to deny defendant’s request must be evaluated with full consideration of the attendant circumstances before the court, including the timeliness thereof …, and we cannot agree that reversal is required based solely on the fact that defendant did not obtain the requested materials prior to the hearing. People v Lashway, 514859, 3rd Dept 12-26-13

 

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