THE DEFENDANT WAS NOT NOTIFIED HE WOULD BE CLASSIFIED AS A SEXUALLY VIOLENT OFFENDER, A VIOLATION OF HIS RIGHT TO DUE PROCESS WHICH DEPRIVED HIM OF THE OPPORTUNITY TO CHALLENGE THE DESIGNATION ON CONSTITUTIONAL GROUNDS; MATTER REMITTED (THIRD DEPT). ​

The Third Department, vacating the sexually violent offender designation, determined the failure to notify defendant that he would be classified as a violent sexual offender deprived defendant of due process resulting in his inability to argue his constitutional objections to the designation on appeal. The matter was remitted:

Here, neither the Board nor the People requested that County Court designate defendant a sexually violent offender, and the designation was never mentioned at the hearing … . Although the court appropriately concluded that the foreign registration clause compelled it to designate defendant a sexually violent offender … , the court erred when it failed to provide defendant with notice and an opportunity to be heard on his designation before issuing a determination (see Correction Law § 168-k [2] …). This error prejudiced defendant, as he could not timely assert, and thereby preserve, the constitutional defenses he presses on appeal … . Specifically, defendant contends that his designation as a sexually violent offender violates his rights to substantive due process and equal protection of the laws and runs afoul of the Privileges and Immunities Clause … . People v Schultz, 2025 NY Slip Op 00251, Third Department 1-16-25

Practice Point: Although the judge was required to designate defendant as a sexually violent offender, the failure to notify him and give him an opportunity to be heard deprived him of his right to challenge the designation on constitutional grounds. The sexually-violent-offender designation was vacated and the matter remitted.