The Second Department, reversing County Court, determined defendant’s due process rights were violated when the judge, sua sponte, assessed risk-level points which were not requested by the People or the Board of Examiners of Sex Offenders:
“The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment” … . “A defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment” … . Thus, “a court’s sua sponte departure from the Board’s recommendation at the hearing, without prior notice, deprives the defendant of a meaningful opportunity to respond” … .
Here, as correctly conceded by the People, the County Court’s assessment of these points, without prior notice to the defendant, deprived him of a meaningful opportunity to respond to the assessment … . People v Montufar-Tez, 2021 NY Slip Op 04158, Second Dept 6-30-21