DEFENDANT WAS NOT GIVEN THE REQUIRED 20-DAY NOTICE OF THE SORA RISK LEVEL HEARING, A VIOLATION OF DUE PROCESS; ALTHOUGH DEFENDANT DID NOT APPEAR AT THE HEARING, HE CAN APPEAL THE UPWARD DEPARTURE TO LEVEL THREE (THIRD DEPT).

The Third Department, reversing County Court, determined petitioner could appeal the 2006 level three sex offender risk level classification, despite his failure to appear at the hearing, because he was not given 20-days notice prior to the hearing:

Although the hearing took place on June 25, 2003, defendant was only advised of it in a letter dated June 11, 2003.Accordingly, defendant’s due process rights were violated given that he was not afforded the minimum 20-day notice as required by statute … . The People respond that defendant explained in a letter sent after the June 2003 hearing that he chose not to attend that hearing because he did not think he would be classified at risk level three. This letter, however, postdated the hearing and any explanation made therein does not amount to a waiver of the right to appear at the hearing. Furthermore, defendant’s posthearing explanation does not obviate the notice requirements that defendant must be statutorily given prior to the hearing. People v Lockrow, 2023 NY Slip Op 01030, Third Dept 2-23-23

Practice Point: Here defendant was not given the required 20-day notice of the upcoming SORA risk level hearing, which violated his due process rights. He therefore could appeal the upward departure to level three.