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SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE.

The Third Department, reversing County Court’s risk level assessment, determined defendant was not given a meaningful opportunity to respond to the assessment of points:

A defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment … . Not only did County Court fail to give defendant notice of its intention to sua sponte assess points for the category of use of violence, it affirmatively misled defendant by its assurance that it had already “made a decision . . . regarding a point score,” which included no assignment of points for that risk factor. Accordingly, defendant was denied due process … . Considering the fact that defendant was never aware of the potential of the assignment of such points until a point in time where he no longer had an opportunity to object — his only remaining opportunity to be heard being explicitly limited to arguing for a downward departure — he need not have taken any further action to preserve the issue for our review … . People v Griest, 2016 NY Slip Op 06907, 33rd Dept 10-20-16

CRIMINAL LAW (SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE)/SEX OFFENDER REGISTRATION ACT (SORA) (SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE)/APPEALS (SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE, NO FURTHER ACTION NECESSARY TO PRESERVE ISSUE FOR APPEAL)

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