SORA Determination Made at Sentencing (Which Included Incarceration) Invalid

The Second Department reversed Supreme Court’s SORA determination because the court failed to follow the procedure required for an incarcerated defendant.  The SORA determination was made at sentencing:

In this case, the Supreme Court sentenced the defendant to a nine-month term of incarceration without any probation supervision. The court conducted the risk assessment hearing and made its risk level determination immediately after sentencing, using a risk level assessment instrument prepared by the District Attorney’s office. This violated SORA and deprived the defendant of his right to due process … . Pursuant to the SORA statutory scheme, a risk level determination should not have been made until 30 days before his release from custody (see Correction Law § 168-n[2]… ). The court’s determination should have been preceded by the Board’s risk level recommendation, and the defendant should have been notified of the opportunity to submit to the Board any information that he believed was relevant for its review (see Correction Law § 168-n[2], [3]). Under the circumstances presented here, the fact that the defendant did not explicitly object to this procedure does not indicate that he knowingly and intelligently waived these statutory and due process rights or failed to preserve the issue for appellate review … . Moreover, while Correction Law § 168-l(8) provides that, notwithstanding the Board’s failure to act, a court may still make a determination regarding a sex offender’s risk level, “this must be read as applying only where the Board had the opportunity to make a recommendation in the first instance” … . Here, the Board had no such opportunity, since the risk level determination was erroneously made immediately after the defendant was sentenced. As a result, “the Supreme Court was without a statutorily-authorized basis for making a risk level determination”… .  People v Game, 2013 NY Slip Op 06670, 2nd Dept 10-16-13