Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 6, #9©

Issue: Risk level hearing and procedure at the hearing

The Board of Examiners of Sex Offenders must notify the offender 30 days before its recommendation that the case is under review and allow the offender to submit information to the Board. Corr Law §168-n(3); see also Corr Law §168-m.

Where there is a dispute as to the proper risk level, the court shall adjourn the hearing as necessary to allow parties to obtain materials from the Board or any state or local facility. Materials may be obtained by subpoena if not voluntarily provided. Corr Law §168-n(3).

The prosecution must provide to the court and the offender a written statement 15 days before the hearing setting forth the determinations sought together with the reasons for seeking them. Corr Law §168-d(3); People v Davila, 299 AD2d 573, 750 NYS2d 196 (3d Dept 2002).

A prosecutor who seeks a higher level than the Board's recommendation must provide a statement to the court and the defendant at least ten days before the hearing. Corr Law § 168-n(3).


The offender has a number of due process rights: judicial determination of risk level classification; advance notice of the classification proceeding; notice of proceeding, including a statement of its purpose and the recommended risk level classification; assistance of counsel; clear and convincing standard of proof; and right to appeal. These rights are incorporated in Corr Law §168-n(3). People v Black, 33 AD3d 981, 823 NYS2d 485 (3d Dept 2006). See also, People v David W., 95 NY2d 130, 711 NYS2d 134, 733 NE2d 206 (2000).

The offender may appear and be heard at the hearing. See People v Brooks, 308 AD2d 99, 763 NYS2d 86 (2d Dept 2003). The offender may offer psychological evidence. See Vandover v Czajka, 276 AD2d 945, 714 NYS2d 793 (3d Dept 2000). The defense has no right to call the victim to testify at the hearing. People v Tucker, 177 Misc2d 418, 676 NYS2d 841 (Co Ct 1998).

The offender is entitled to assigned counsel at the hearing. People v Lasch, 309 AD2d 1086, 765 NYS2d 916 (3d Dept 2003).

Proceeding in absentia

Where the offender is given notice but fails to appear without sufficient excuse, the court may conduct the hearing and make a determination in absentia. Corr Law §168-d(4).Waiver is shown by evidence that the defendant was advised of the hearing date, of the right to be present, and that the hearing would be conducted in his absence. Reliable hearsay is sufficient. People v Porter, 37 AD3d 797, __ NYS2d __ (2d Dept 2007).

Hearing Evidence

Facts determined at the trial or at the guilty plea may not be relitigated. Corr Law §168-n(3); People v Miller, 36 AD3d 428, 828 NYS2d 26 (1st Dept 2007).

By statute, the court may consider "reliable hearsay evidence" in reaching its determination. Corr Law §168-n(3).

A court may use an offender's admissions contained in a PSI. People v Arnold, 35 AD3d 827, 828 NYS2d 119 (2d Dept 2006)

A certified copy of an out-of-state presentence report was reliable hearsay that could be considered. People v Brown, 25 AD3d 924, 807 NYS2d 221 (3d Dept 2006). However, in another proceeding involving an out-of-state conviction, the report was not denominated as a probation report or signed by a probation officer, the determination was not based on reliable hearsay and did not appear that any effort was made to independently verify its reliability. People v Brown, 7 AD3d 831, 776 NYS2d 366 (3d Dept 2004).

The prosecution failed to specify or submit any evidence of the offender's prior juvenile delinquency adjudication or placement. See People v Ross, 37 AD3d 1117, 829 NYS2d 365 (4th Dept 2007).

Adding points for weapons possession was improper where the offender, who had entered an Alford guilty plea, had not admitted that he possessed a dangerous weapon. Neither the victim's equivocal statements nor the unreliable statements in the presentence report sufficed to support the point assessment. People v Gonzalez, 28 AD3d 1073, 814 NYS2d 834 (4th Dept 2006).

The prosecution's burden at the hearing is clear and convincing evidence. Corr Law §168-n(3).

"In certain trying circumstances, urgent circumstances, desperate circumstances, profanity furnishes a relief denied often to prayer." Mark Twain

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