On 21 July 2003, the defendant pleaded guilty to the crime of sexual abuse in the second degree. The court then provided the defendant with a sentencing commitment of 10 months incarceration. Pursuant to Criminal Procedure Law, sentencing was adjourned, for the purpose of a presentence report to be prepared by the Department of Probation, until 28 August 2003 when the presentence report was prepared and was made available to the defendant. However, at the request of the defendant, sentencing was again adjourned until 15 September 2003, then until 26 September 2003, again until 10 October 2003, and again until 24 October 2003. The presentence report referenced the defendant’s prior conviction of a third degree sexual offense in Prince County, Maryland. It also noted that, following that conviction the defendant failed to register as a sexual offender as required, and also violated probation. On 24 October 2003, the defendant again requested that sentence be adjourned and for a hearing to determine the risk level to be assigned by the court. On 30 October 2003, sentencing as well as a hearing date was set, at which time the defendant requested yet another adjournment of sentencing and hearing until 5 November 2003.
On 3 November 2003, the Board forwarded the risk assessment instrument to the court, as requested. On 5 November 2003, the court provided a copy of the risk assessment instrument to both parties. Thereafter, it was requested by the defendant that the court abide by its 10-month commitment and sentence him, but adjourn the hearing until some time after the defendant’s release. According to the defendant, Correction Law provides that determinations by the sentencing court shall be made within thirty calendar days prior to release; 20 days notice of the determination proceeding and a copy of the Board’s recommendations must be provided to him; and that additional time was needed for discovery.
The court denied the defendant’s request. The SORA contemplates the Board’s risk level recommendation being made to the sentencing court within 60 days prior to the defendant’s release. That sentencing court is then to determine the classification within 30 days prior to discharge and provide counsel with 20 days notice of the determination proceeding.
Here, by reason of the defendant’s repeated adjournments of sentencing, the court would not become the sentencing court until 5 November 2003, the day before the defendant’s 10-month commitment was set to expire and the defendant would be released. Clearly, at defendant’s own request, the Board and the court were unable to adhere to the time frames set forth in the Correction Law. Moreover, the court did not deem it warranted to adjourn the hearing until after the defendant’s unsupervised release. The Board recommended a risk level three solely upon the presence of a prior felony conviction for a sexual offense in Maryland, a conviction specifically referenced in the presentence report. The defendant had access to the presentence report since at least 28 August 2003 or over 75 days prior to sentence, and the defendant himself requested a hearing as early as 24 October 2003 or 13 days prior to the actual sentencing and SORA hearing. Since the defendant already possessed the discovery relied upon by the Board in making its assessment, there was no legitimate need, or right, to additional discovery. Lastly, the presentence report specifically references the defendant’s past failure to register as a sexual offender in connection with a prior sexual offense, as well as his violation of probation for that sex crime. Obviously, adjourning the hearing until after the defendant’s unsupervised release without his registering as a sex offender would have resulted in an unwarranted risk to the public. Nonetheless, the court nevertheless granted one more adjournment, until 6 November 2003, to provide defense counsel with an opportunity to review a certified copy of the Maryland court’s file concerning the defendant’s prior conviction for a sexual offense.
Consequently, the Board’s risk assessment instrument recommended a level three designation on the basis of a prior Maryland conviction for a third degree sexual offense.
To sum it up, before the court is a proceeding to determine the classification and level of notification, pursuant to Correction Law article 6-C, to be imposed under the SORA. The defendant was convicted of the class A misdemeanor of sexual abuse in the second degree, a violation of section 130.60 (2) of the Penal Law. Prior to the commencement of the hearing, the Board of Examiners submitted to the court a risk assessment instrument which recommended a risk level three (high), based upon the defendant’s prior conviction of a felony sex abuse crime in Maryland. This written decision supplements the oral decision previously rendered wherein the court assigned a level three risk designation and designated the defendant as a sexually violent offender. The question now is whether a court may, after having repeatedly adjourned at the defendant’s request a sex offender’s sentencing and Sex Offender Registration Act (SORA) hearing, agree to sentence the defendant, release the defendant unsupervised, and conduct the SORA hearing at a date after the defendant’s release where that defendant is a prior felony sex offender who has in the past been convicted of failure to register as a sexual offender, and violated probation, and where the defendant possessed, for a substantial time prior to the hearing, the discovery relied upon by the Board of Examiners in recommending a risk level to be assigned to the defendant.
The People submitted at the hearing a certified copy of the Maryland court’s file setting forth the prior sexual offense conviction. Meanwhile, the court took notice of a copy of the Maryland statute reflecting that the prior conviction is a felony with a maximum jail sentence of 10 years.
Accordingly, the court found that the certified copy of the Maryland file concerning the defendant’s prior conviction established by clear and convincing evidence the existence of the conviction; independently, the presentence report, which specifically referenced that prior conviction, was reliable hearsay for purposes of the hearing; through the Maryland conviction documents and the information contained in the presentence report, the People have satisfied their burden that the defendant is a prior felony sex offender by clear and convincing evidence; and concurred with the Board’s recommendation that a level three designation was warranted. It has not been established by clear and convincing evidence that there existed a mitigating factor of any kind, or to a degree, not otherwise adequately taken into account by the guidelines which would constitute special circumstances warranting a downward departure from this risk level. In sum, the defendant was found to be a sexually violent offender, on the basis of two independent grounds, namely: that the defendant was convicted of a prior offense, the Maryland felony, for which the defendant was required to register as a sex offender; and that the defendant was convicted of an offense in another jurisdiction, the Maryland felony, which includes all the essential elements of Penal Law § 130.65. In other words, the court denied defendant’s request and, after a hearing, classified the defendant a risk level three and a sexually violent offender.
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