SCOTT, LASHAWN J., PEOPLE v

        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

655
KA 11-00404
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LASHAWN J. SCOTT, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Monroe County Court (Frank P. Geraci,
Jr., J.), entered January 24, 2011. The order determined that
defendant is a level three risk pursuant to the Sex Offender
Registration Act.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the matter is
remitted to Monroe County Court for further proceedings in accordance
with the following Memorandum: Defendant appeals from an order
determining that he is a level three risk pursuant to the Sex Offender
Registration Act ([SORA] Correction Law § 168 et seq.). We agree with
defendant that County Court erred in granting the People’s request,
made for the first time at the SORA hearing, to assess 20 additional
points for risk factors that were not included in the risk assessment
instrument, and therefore to determine that defendant is a level three
risk rather than a level two risk. As the People correctly concede,
they failed to provide defendant with the requisite 10-day notice that
they intended to seek a determination different from that recommended
by the Board of Examiners of Sex Offenders (see § 168-n [3]; People v
Gardner, 59 AD3d 604), and the court otherwise failed to provide
defendant with “a meaningful opportunity to respond to the proposed
amendment” (People v Ferguson, 53 AD3d 571, 572; cf. People v Warren,
42 AD3d 593, 594, lv denied 9 NY3d 810). Furthermore, defendant
properly objected to the People’s request (cf. People v Charache, 9
NY3d 829, 830). Because defendant was denied his due process rights
by the assessment of the additional points, we reverse the order,
thereby vacating defendant’s risk level determination, and we remit
the matter to County Court for further proceedings in compliance with
Correction Law § 168-n (3) (see People v Hackett, 89 AD3d 1479, 1479-
                          -2-                  655
                                         KA 11-00404

1480).




Entered:   June 8, 2012         Frances E. Cafarell
                                Clerk of the Court