People v. Lashway

OPINION OF THE COURT

The issue on this appeal is whether County Court abused its discretion when denying defendant’s request for an adjournment of his reclassification hearing of his risk level status under the Sex Offender Registration Act (SORA) (see Correction Law § 168-o). Under the circumstances of this case, we conclude County Court did not abuse its discretion.

Defendant was convicted in 1990 of three counts of rape in the second degree, perpetrated against an 11-year-old child while he was on parole for an earlier rape conviction. He was sentenced as a second felony offender to IOV2 to 21 years in prison. Prior to his release in 2004, defendant was adjudicated a risk level three sex offender under SORA (see Correction Law art 6-C). Defendant thereafter violated parole and was returned to prison.

In June 2010, while under civil confinement pursuant to Mental Hygiene Law article 10, defendant filed a petition under Correction Law § I68-0 for a downward modification of his risk level. After receiving his petition, County Court solicited an updated recommendation from the New York State Board of Examiners of Sex Offenders (the Board) (see Correction Law § I68-0 [4]).

The Board indicated by letter that it had reviewed a list of documents including, among other things, the original risk assessment instrument and two emails: one from the Division of Parole dated July 21, 2010 and another from the Office of the Attorney General dated July 22, 2010. The Board noted that defendant has been civilly confined pursuant to Mental Hygiene Law article 10, which information would have resulted in a presumptive level three designation under the SORA Risk Assessment Guidelines had it been available at the time of the initial SORA hearing, and that defendant had continued to “ac

County Court summarily denied defendant’s modification request without conducting a hearing. The Appellate Division held that defendant was entitled to a hearing and remitted to County Court for further proceedings ( 90 AD3d 1178 [2011], lv dismissed 18 NY3d 945 [2012]).

Upon request from County Court, the Board submitted another updated recommendation which simply attached its July 2010 recommendation, and stated that defendant had since incurred multiple tier II and tier III infractions and was unlikely to be released before his maximum incarceration date of March 31, 2014. A reclassification hearing was scheduled. Shortly before the hearing, counsel for defendant submitted a proposed order to show cause why the Board should not be directed to deliver to County Court, on the date of the hearing, a copy of all of the documents that the Board listed in its July 2010 and March 2012 updated recommendations. County Court signed the order. The Board responded by providing most of the documents, but not the 2010 emails.

At the hearing, defendant’s counsel requested an adjournment pending receipt of the missing documents, which County Court denied. The hearing proceeded with defendant arguing that three factors warranted his downward departure: he had not committed a new sex offense in over 26 years; he completed programs during his incarceration; and he has medical issues. The People adduced evidence of multiple disciplinary actions that had been taken against defendant while in state custody. They further argued that, regardless of any scoring factors, because defendant has had two felony sex offenses, he qualified for a presumptive override and level three designation. County Court denied defendant’s modification request, holding that he failed to establish by clear and convincing evidence that he was entitled to a downward modification.

The Appellate Division, with one Justice dissenting, affirmed ( 112 AD3d 1235 [3d Dept 2013]). As relevant to this appeal, the Court rejected defendant’s claim that County Court erred in denying his request for an adjournment (id. at 1237). The Court noted that the Board’s updated recommendation stated only that it “ ‘reviewed’ ” the subject documents, and not that it relied upon them (id.). Even “[m]ore significantly,” it stated,

Justice Spain dissented and voted to reverse the denial of defendant’s application to modify his classification and remit for a hearing {see id. at 1239-1240). Justice Spain concluded that “defendant was deprived of due process of law by County Court’s failure to abide [his] motion . . . for access to copies of all of the records that the Board . . . reviewed and listed in making its updated recommendations” {id.). He reasoned that the recommendation of the Board, although not binding on the court, “in practice ... is often among the most influential factors considered by a sentencing court” {id.). Thus, in the context of a reclassification proceeding in which the defendant has the burden of proof, “the defense will frequently focus its challenge on the underlying basis for the Board’s adverse recommendation” {id.). According to the dissent, due process requires that a

Defendant argues on this appeal that he was deprived of due process of law when County Court failed to grant an adjournment so as to give him access to copies of all the records that the Board reviewed and listed in making its updated recommendation.

Correction Law § 168-o (2) permits a sex offender required to register under SORA to petition annually for modification of his risk level classification. The petitioner bears the burden of proving the facts supporting a requested modification by clear and convincing evidence (see Correction Law § 168-o [2]). The court ultimately determines a petitioner’s SORA risk level, and is not bound by the Board’s recommendation, from which it may depart in considering the record (see Correction Law § 168-n [2], [3]). Where the hearing court’s findings, expressly made under the proper evidentiary standard, are affirmed by the Appellate Division, this Court’s review is limited to whether the decisions below are affected by an error of law or are otherwise not supported by the record.

In an initial risk level determination, where the People carry the burden, the due process rights of a petitioner include, among other things, prehearing discovery (see Doe v Pataki, 3 F Supp 2d 456 [SD NY 1998]). Therefore, defense counsel is entitled by statute to prehearing access to the documents reviewed by the Board prior to his or her initial SORA determination. However, initial risk level assessments and reclassification petitions by statute are different.

Section 168-o (4), applicable when a petitioner seeks modification of the risk level, does not contain any language

Nonetheless, it is well-settled that the decision to grant an adjournment is a matter of discretion for the hearing court (People v Singleton, 41 NY2d 402 , 405 [1977]). “[W]hen the protection of fundamental rights has been involved in requests for adjournments, that discretionary power has been more narrowly construed” (People v Spears, 64 NY2d 698 , 700 [1984]). Under the circumstances of this case, it cannot be said the court abused its discretion as a matter of law in failing to adjourn the hearing to gather the two emails.

The record evidence is overwhelming in support of the denial of any modification. Defendant is a repeat sex offender who has been found to have a mental abnormality and has continued to incur multiple infractions while incarcerated. Given the strong case against modification, defendant was not prejudiced by the court’s denial of an adjournment to obtain the documents (see People v Rodriguez, 102 AD3d 457 , 457 [2013], affd 21 NY3d 1030 [2013]). Moreover, as the Appellate Division noted, defendant is entitled to make a new application for reclassification in a year (see Correction Law § 168-0 [2]) and can obtain the documents by making a timely request.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Lippman and Judges Read, Rivera, AbdusSalaam and Fahey concur; Judge Stein taking no part.

Order affirmed, without costs.