Summary
This Appellate Division decision addresses a criminal defendant's appeal of a Sex Offender Registration Act (SORA) risk level determination. Although the court exercised discretion to treat a premature notice of appeal as valid, it reversed the lower court's order because the defendant was denied a meaningful opportunity to request a downward departure after the court sua sponte assessed additional risk points. The matter was remanded to County Court for a new SORA hearing and risk level determination.
Topics
Practice areas
Questions Presented
- Whether the County Court erred in assessing the defendant's risk level under the Sex Offender Registration Act.
- Whether a premature notice of appeal may be treated as valid.
Holdings
- The appellate division may, in the interest of justice, deem a premature notice of appeal valid and treat the appeal as properly taken.
- The County Court abused its discretion in assessing the risk level; the order is reversed, the risk level determination vacated, and the matter remitted for a new hearing.
Key quotations
“We therefore reverse the order, vacate defendant's risk level determination, and remit the matter to County Court for a new hearing and risk level determination (see generally Lostumbo, 225 AD3d at 1279; People v. Tutty, 156 AD3d 1444, 1445 [4th Dept 2017]).” (at 04434)
Factual background
The defendant met a 15‑year‑old victim online, used an alias, and had sexual intercourse with her two months after meeting in person. The County Court assessed 20 points under risk factor seven and designated the defendant a level two sex offender.
Procedural history
The County Court entered an order on May 2, 2024 designating the defendant a level two sex offender. The defendant filed a notice of appeal before the order was entered; the Appellate Division treated the premature notice as valid and reviewed the order, concluding the lower court abused its discretion.
Remand instructions
Remit the matter to Steuben County Court for a new hearing and risk level determination.