EVEN THOUGH DEFENDANT WAIVED HIS RIGHT TO BE PRESENT AT THE SORA RISK-LEVEL ASSESSMENT PROCEEDING, HE DID NOT WAIVE HIS RIGHT TO EFFECTIVE COUNSEL; COUNSEL DID NOT COMMUNICATE WITH DEFENDANT AND DID NOT PRESENT A DEFENSE; ORDER REVERSED (THIRD DEPT).

The Third Department, reversing County Court, determined that, although defendant waived his right to be present at the SORA risk-assessment proceeding, he did not waive his right to effective assistance of counsel. Counsel did not communicate with the defendant and did not present a defense at the hearing:

“SORA defendants have the right to the effective assistance of counsel, pursuant to the Due Process Clauses contained in the 14th Amendment of the US Constitution and article I, § 6 of the NY Constitution, because the statutory right to counsel in such proceedings … would otherwise be rendered meaningless, and because SORA determinations affect a defendant’s liberty interest” … . Moreover, “[a] fundamental aspect of the attorney-client relationship is communication” and “we have noted that an attorney’s responsibility in the representation of any client requires consulting with and counseling the client” … . Defendant waived his right to be present at the hearing but did not waive his right to challenge the Board’s risk assessment and the People’s proof … . During the hearing, counsel admitted that he lacked “the benefit of [defendant’s] input” in proceeding with the matter and County Court acknowledged that counsel was at a “disadvantage” because he had not had a chance to speak with defendant. The record further reflects that counsel failed to present a defense or raise any objections and did not require the People to present any proof at the hearing. People v Moore, 2022 NY Slip Op 05242, Third Dept 9-22-22

Practice Point: Even where a defendant waives his right to appear at a SORA risk-assessment proceeding, he is entitled to effective assistance of counsel. Counsel, to be effective, must communicate with the defendant and present a defense.