Opinion
393 KA 14-01242.
04-29-2016
The PEOPLE of the State of New York, Respondent, v. Josue ENCARNACION, Defendant–Appellant. (Appeal No. 1.)
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM: In appeal No. 1, defendant appeals from an order determining that he is a level one risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ), but the only issues raised on appeal concern the order in appeal No. 2, determining that he is a sexually violent offender pursuant to SORA. We thus deem defendant's appeal from the order in appeal No. 1 abandoned (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 ). Defendant contends in appeal No. 2 that Supreme Court erred in conducting the SORA hearing in his absence. We agree. A sex offender has a due process right to be present at a SORA hearing (see People v. David W., 95 N.Y.2d 130, 138–140, 711 N.Y.S.2d 134, 733 N.E.2d 206 ; People v. Gonzalez, 69 A.D.3d 819, 819, 892 N.Y.S.2d 774 ; see also § 168–n [3] ), and the court “violated the due process rights of defendant when it held the SORA hearing in his absence without verifying that he had received the letter notifying him of the date of the hearing and his right to be present” (People v. Distaffen, 71 A.D.3d 1597, 1598, 896 N.Y.S.2d 919 ). We are thus constrained to reverse the order and remit the matter to Supreme Court for a new hearing and sexually violent offender determination in compliance with Correction Law § 168–n (3).
Defendant's remaining contentions in appeal No. 2 are moot in light of our determination therein.
It is hereby ORDERED that said appeal is unanimously dismissed without costs.