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THE SORA HEARING JUDGE SHOULD NOT HAVE GRANTED AN UPWARD DEPARTURE, INCREASING DEFENDANT’S SORA RISK LEVEL, BASED ON INFORMATION WHICH WAS NOT IN THE RISK ASSESSMENT INSTRUMENT (RAI) OR RAISED BY THE PEOPLE AT THE HEARING; TO DO SO VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the judge should not have increased defendant’s SORA risk-level based upon information which was not included in the risk assessment instrument (RAI) or raised by the People at the SORA hearing:

“The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine [their] risk level pursuant to SORA and a meaningful opportunity to respond to the [RAI]” … . It is therefore improper for a court to depart from the presumptive risk level based on a ground for departure that has never been raised (see id.). Here, because defendant’s employment was not presented as a basis for departure in the RAI or by the People at the hearing, defendant was not afforded notice and a meaningful opportunity to respond to it … . We therefore reverse the order, vacate defendant’s risk level determination, and remit the matter to County Court for a new risk level determination and, if necessary, a new hearing in compliance with Correction Law § 168-n (3) and defendant’s due process rights … . People v Lincoln, 2025 NY Slip Op 03930, Fourth Dept 6-27-25

Practice Point: A defendant is entitled to notice of all the evidence which the court will rely for a SORA risk-level assessment such that the defendant has an opportunity to respond.

 

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