Failure to Follow Statutory Risk-Level-Determination Procedure Violated Defendant’s Due Process Rights

The Second Department determined that ignoring the statutory SORA risk-level-determination procedure violated defendant’s due process rights. The court exercised its interest of justice jurisdiction in the absence of an objection by the defendant:

Supreme Court sentenced the defendant to two one-year terms of incarceration, without any probation supervision. The court conducted the risk assessment hearing and made its risk level determination immediately prior to imposing sentence, and did so using a risk level assessment instrument prepared by the District Attorney’s office. This procedure violated SORA and deprived the defendant of his right to due process … . Pursuant to the SORA statutory scheme, a risk level determination should not have been made until 30 days before the defendant’s release from custody (see Correction Law § 168-n[2]…). The court’s determination should have been preceded by the Board’s risk level recommendation, and the defendant should have been notified of the opportunity to submit to the Board any information that he believed was relevant for its review … . People v Grabowski, 2015 NY Slip Op 01930, 2nd Dept 3-11-15