Recently, a New York defendant successfully argued to reverse the lower court’s classification of his sex offender registration risk level in a sex offender case. The defendant was charged with and convicted of engaging in forcible sexual intercourse in 2012, and when he was eventually released from prison, the State suggested a risk level to put on the defendant’s sex offender registry. After the lower court accepted the State’s recommendation, the defendant appealed, and the higher court reversed the original decision. Generally, before a sex offender is released from incarceration an evidentiary hearing is held to determine the appropriate risk level and therefore the terms of the offender’s registration.
Facts of the Case
According to the opinion, the defendant engaged in forced sexual intercourse with a child when he was 19 years old. He spent five years in prison, and he registered for the sex offender registry when he was released. As part of that registry, the defendant knew the court would assign him a “risk level,” which would indicate to anyone looking him up on the registry how dangerous the court thought he might be.
The State suggested a risk level of 3 (the highest possible level) for the defendant, but the defendant thought his level should be lower than the State’s suggestion. During a hearing on the defendant’s risk level, the court granted the State’s request and assigned the defendant the number 3 on the sex offender registry. The defendant appealed.
On appeal, the defendant argued that he was not given a proper warning regarding the State’s intention to ask the court for a level 3 classification. Under New York criminal procedural rules, a defendant must be given proper notice as to the State’s suggestion so that he or she can have the time to prepare evidence and make a case in order to refute the State’s recommendation. Here, said the defendant, the State only announced the idea of classifying the defendant at level 3 once all parties were already at the hearing. The State, therefore, did not meet the “notice” requirement under the law.
The higher court reviewed the evidence and agreed that the defendant was blind-sided by the State’s suggestion. The State did not provide any notice before the hearing regarding this recommendation, and the defendant, therefore, had no opportunity to prepare a case against the State.
Without this notice, the lower court’s decision could not stand. The higher court, therefore, reversed the decision and sent the case back down for additional proceedings.
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