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DEFENDANT WAS NOT GIVEN AN OPPORTUNITY TO RESPOND TO A RISK-ASSESSMENT THEORY RAISED FOR THE FIRST TIME AT THE HEARING; MATTER REMANDED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant should not have been assessed risk-factor points based on a theory which defendant was unable to respond to because it was raised for the first time at the SORA risk-assessment hearing. The matter was remanded:

… [T]he court should have found that the People acted improperly in raising, for the first time at the hearing, as the basis for scoring defendant 15 points for inflicting physical injury under risk factor 1, a new reason or theory that differed from the basis for that scoring specified in the Board’s case summary and in the People’s prehearing submissions. This deprived defendant of the proper advance, informative notice of “the reasons” and “basis” for the People seeking the 15-point determination to which he was entitled under Correction Law § 168-n (3) and due process, so as to afford him a meaningful opportunity to respond to the assessment … People v Jackson, 2023 NY Slip Op 05043, First Dept 10-5-23

Practice Point: If the People present a new risk-assessment theory at the SORA hearing, the court must give the defendant a meaningful opportunity to respond before issuing a ruling.

 

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