The issue presented in this case is whether or not a court which has repeatedly adjourned the defendant’s request for a sex offender’s sentencing and sex offender registration act hearing may agree to sentence the defendant, release the defendant unsupervised and conduct the SORA hearing at a date after the defendant’s release. This is despite the fact that the defendant is a prior sex offender who has in the past been convicted of failure to register as a sexual offender and who has violated probation.
The court denied the defendant’s request and, after hearing was conducted, classified the defendant at a risk level three and a sexually violent offender. The reasons as set forth by the court are narrated below.
This is a petition to determine the classification and level of notification pursuant to Correction Law article 6-C to be imposed under the SORA. The defendant in this case was convicted of the class A misdemeanour of sexual abuse in the second degree, a violation of section 130.60 (2) of the Penal Law. Before the hearing was conducted, the Board of Examiners submitted to the Court a risk assessment instrument wherein the board recommended a risk level three (high risk). Said instrument was based upon the defendant’s prior conviction of a felony of sexual abuse crime in another state. Prior to the rendering of this decision, there had been an earlier oral ruling wherein the defendant was classified as a level three risk designation and as a violent sexual offender.
In this instant case, the defendant pleaded guilty to the crime of sexual abuse in the second degree. After entering his plea, the court provided the defendant with a sentence of 10 months of imprisonment. However, sentencing was adjourned for the purpose of presentence report which must be prepared by the Department of Probation. The presentence report was then made available to the defendant, through his defense counsel, but the latter requested for another deferment of the sentencing . There were three other adjournment that followed.
The presentence report, as prepared by the Board of Probation, includes the defendant’s prior conviction of another sexual offence in another state. After having been convicted, the defendant even failed to register as a sexual offender as required which violated his probation.
Later, as requested by the court, the board of probation has furnished a copy of the report to the court and to both parties, through their respective counsels. The defense counsel now moved that the court abide to its 10-month imprisonment penalty and to sentence the defendant but said hearing was again adjourned until some time after the defendant was released. Said motion was based on the provision of the correction law which provides that the determinations by the sentencing court must be made within thirty days before the release. Another provision of the Correction Law likewise provides that the defense counsel with 20 days notice of the determination proceeding and a copy of the Board’s recommendation. The defense counsel stated that he needed additional time for the discovery.
The Court denied the request of the defense. According to the court, the SORA contemplates the Board’s risk level recommendation being made to the “sentencing court” within 60 days prior to defendant’s release. Said “sentencing court” shall determine the classification within 30 days prior to the discharge of the defendant and provide the counsel with 20 days notice of the determination proceeding. In this instant case, the defendant repeatedly asked for postponement of the sentencing which led to the court to conduct the sentencing hearing 1 day before the defendant’s 10 month commitment was set to expire and the defendant will be released. Therefore, based on the foregoing, the court and the Board were not able to adhere to the time frames as set forth in the Correction Law.
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