In a Risk Level Modification Proceeding, a Defendant Is Entitled to All the Documents Reviewed by the Board

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined defendant was entitled to access to all the documents reviewed by the New York State Board of Examiners of Sex Offenders (Board) in connection with the Board’s recommendation that defendant’s classification remain at risk level 3.  However, County Court’s refusal to grant an adjournment to allow defendant to gain access to missing documents (two emails) was not an abuse of discretion. The record evidence in support of the denial of the modification was overwhelming:

Section 168-o (4), applicable when a petitioner seeks modification of the risk level, does not contain any language entitling a petitioner to pre-hearing discovery, but simply provides that a petitioner has a right to submit “any information relevant to the review” (Correction Law § 169-o [2]). Further, the right to petition the sentencing court to be “relieved of any further duty to register” under Correction Law § 168-o (1) does not permit the court to review the correctness of the initial risk level determination (see Correction Law § 168-g [4]…). While there are statutory differences in the two [*5]proceedings, we agree with defendant that the procedural due process rights, in regard to the requested documents, were the same. Thus, defendant was entitled to access to the documents.

Nonetheless, it is well-settled that the decision to grant an adjournment is a matter of discretion for the hearing court … . “When the protection of fundamental rights has been involved in requests for adjournments, that discretionary power has been more narrowly construed” … . Under the circumstances of this case, it cannot be said the court abused its discretion as a matter of law in failing to adjourn the hearing to gather the two emails. People v Lashway, 2015 NY Slip Op 04877, CtApp 6-11-15