This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 94
The People &c.,
            Respondent,
        v.
Steven Lashway,
            Appellant.




          Marcy I. Flores, for appellant.
          Nicholas J. Evanovich, for respondent.




PIGOTT, J.:
          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,

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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 10 1/2 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 § 168-o 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 § 168-o [3]).
            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
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 "accrue


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criminal convictions" and demonstrate violent behavior.     Thus,
the Board did not recommend a reduction in his risk level
classification.
           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, 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 two and tier three 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


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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 3 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 "more significantly," it stated,
"County Court was not bound by the Board's recommendation as to
whether to modify defendant's risk assessment level and there is
no evidence -- nor does defendant argue -- that County Court was
in possession of, let alone considered, the subject documents in
making its determination" (id. at 1237-1238 [citations omitted]).
Rather, County Court had denied the modification based on "the
finding that defendant had a mental abnormality, his violation of
parole, his assaultive behavior while in custody and the


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presumptive override resulting from his prior felony conviction
of a sex crime" (id. at 1238).    Although the court recognized
that defendant was entitled to discovery of the materials, it
noted that "discovery is subject to certain limitations and the
court has 'considerable discretion to supervise the discovery
process'" (id., quoting Kropp v Town of Shandaken, 91 AD3d 1087,
1092 [3d Dept 2012]).   The court concluded that County Court had
not abused its discretion in declining to adjourn the hearing in
light of defendant's "protracted delay" in requesting the
documents (id. at 1238-1239).    Furthermore, the majority
disagreed with the dissent that the denial of the adjournment
deprived defendant of due process, observing that "[d]ue process
is 'a flexible concept' and a defendant's due process rights in
[a reclassification] context are similar, but not identical, to
the rights of a defendant in an initial risk assessment" (id. at
1239 [citations omitted]).   In this case, the court held,
"defendant was neither denied the ability to offer relevant
materials in support of his application nor prevented from
defending himself against any evidence or documentation relied
upon by County Court in deciding such application" (id.).
          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


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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 be "afforded access -- through prehearing discovery --
to all material considered on or influencing his reclassification
petition" (id.).   Moreover, "[d]efendant's right to submit
information relevant to the review of his reclassification
request would, in many cases, be rendered meaningless if he were
not entitled to review and address all materials considered by
the Board" (id. [internal quotation marks and citation omitted]).
In the dissent's view, County Court did not itself rely on the
materials withheld; however, it did "expressly rely on the
Board's recommendation, which did consider the materials" (id.).
Although it could not be discerned whether the denial of the
withheld material affected the reclassification determination,
the dissent concluded that he could "not agree that the error was
harmless or overlook the deleterious precedential value of an
affirmance in this case" (id. at 1242).
           Defendant argues on this appeal that he was deprived of


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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, pre-hearing discovery (see Doe v
Pataki, 3 F Supp 2d 456 [SD NY 1998]).    Therefore, defense
counsel is entitled by statute to pre-hearing 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.


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          Section 168-o (4), applicable when a petitioner seeks
modification of the risk level, does not contain any language
entitling a petitioner to pre-hearing discovery, but simply
provides that a petitioner has a right to submit "any information
relevant to the review" (Correction Law § 169-o [2]).    Further,
the right to petition the sentencing court to be "relieved of any
further duty to register" under Correction Law § 168-o (1) does
not permit the court to review the correctness of the initial
risk level determination (see Correction Law § 168-g [4]; People
v David W. , 95 NY2d 130, 140 [2000]).   While there are statutory
differences in the two proceedings, we agree with defendant that
the procedural due process rights, in regard to the requested
documents, were the same.   Thus, defendant was entitled to access
to the documents.
          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]). "When 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


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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-o [2]) and can obtain the documents by
making a timely request.
            Accordingly, the order of the Appellate Division should
be affirmed, without costs.
*   *   *    *   *   *   *    *    *      *   *   *   *    *   *   *   *
Order affirmed, without costs. Opinion by Judge Pigott. Chief
Judge Lippman and Judges Read, Rivera, Abdus-Salaam and Fahey
concur. Judge Stein took no part.

Decided June 11, 2015




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