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EVEN THOUGH THE NUMBER OF POINTS WAS REDUCED BY THE CHANGE IN THE FACTUAL BASIS FOR THE RISK ASSESSMENT FROM “ARMED WITH A DANGEROUS INSTRUMENT” (RECOMMENDED BY THE BOARD) TO “INFLICTED PERSONAL INJURY,” DEFENDANT WAS ENTITLED TO 10 DAYS NOTICE OF THE CHANGE (SECOND DEPT).

The Second Department, reversing Supreme Court in this SORA risk assessment proceeding, determined defendant was not given the required 10-day notice that the People would seek points under a risk factor that differed from the recommendation submitted by the the board. Here the board recommended a 30-point assessment under risk factor 1 for “armed with a dangerous instrument” but the court assessed 15 points for “inflicted personal injury.” The defendant was entitled to notice of that change, even though the number of points was reduced:

Correction Law § 168-n(3) provides that, “[i]f the district attorney seeks a determination that differs from the recommendation submitted by the board, at least ten days prior to the determination proceeding the district attorney shall provide to the court and the sex offender a statement setting forth the determinations sought by the district attorney together with the reasons for seeking such determinations” … , this Court held that the phrase “recommendation submitted by the board” is not limited to just the total points assessed or the recommended sex offender level designation, but “includes the factual predicate for the recommendation” … .

Here, the factual predicate for the Board’s recommendation for the assessment of points under risk factor 1 was the defendant having been “armed with a dangerous instrument,” not that he “inflicted physical injury.” In order to assess points under risk factor 1 based upon infliction of physical injury, the People were required by Correction Law § 168-n(3) to give the defendant the requisite 10-day notice, which they failed to do … . People v Green, 2023 NY Slip Op 02799, Second Dept 5-24-23

Practice Point: If the People seek a SORA risk assessment on a factual basis different from that recommended by the board, defendant is entitled to 10 days notice of the change, even if the change reduces the number of points to be assessed.

 

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