                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 20, 2016                   519408B
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

DONALD R. GRIEST JR.,
                    Appellant.
________________________________


Calendar Date:   September 9, 2016

Before:   McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.

                             __________


     Mitch Kessler, Cohoes, for appellant.

      Mark D. Suben, District Attorney, Cortland (Zela Brotherton
of counsel), for respondent.

                             __________


McCarthy, J.P.

      Appeal from an order of the County Court of Cortland County
(Ames, J.), entered March 20, 2014, which classified defendant as
a risk level three sex offender and a sexually violent offender
pursuant to the Sex Offender Registration Act.

      Defendant pleaded guilty to sexual abuse in the first
degree stemming from his sexual contact with a
then-eight-year-old victim, and he was sentenced to six years in
prison followed by five years of postrelease supervision. Prior
to his release from prison, the Board of Examiners of Sex
Offenders prepared a risk assessment instrument that
presumptively classified defendant as a risk level three sex
offender under the Sex Offender Registration Act (see Correction
Law art 6–C). That risk assessment instrument assigned defendant
                              -2-                519408B

zero points under risk factor 1, regarding use of violence.
Thereafter, the People requested that County Court classify
defendant a risk level three sex offender. That written
application specifically noted that the category of use of
violence was "not applicable." Following a hearing, County Court
preliminarily classified defendant as a risk level two sex
offender. That preliminary classification did not include
assessing any points for the use of violence category. At the
outset of a subsequent hearing that County Court held to consider
the People's argument for an upward departure, the court
explained that it had already "made a decision . . . regarding a
point score." After that hearing, and despite recognizing that
"both sides had agreed that [zero] points would be a[ss]essed for
[risk f]actor 1," the court assigned 10 points for risk factor 1,
i.e., use of violence. Based on the addition of that 10 points,
the court found defendant to be a risk level three sex offender.
The court offered defendant an opportunity for further argument
only to the extent of whether a downward departure was warranted,
and defendant declined that opportunity. Defendant appeals, and
we reverse based on the violation of defendant's due process
rights.

      A defendant has both a statutory and constitutional right
to notice of points sought to be assigned to him or her so as to
be afforded a meaningful opportunity to respond to that
assessment (see Correction Law § 168-d [3]; People v David W., 95
NY2d 130, 136-140 [2000]; People v Segura, 136 AD3d 496, 497
[2016]; People v Hackett, 89 AD3d 1479, 1480 [2011]; People v
Neish, 281 AD2d 817, 817 [2001]). Not only did County Court fail
to give defendant notice of its intention to sua sponte assess
points for the category of use of violence, it affirmatively
misled defendant by its assurance that it had already "made a
decision . . . regarding a point score," which included no
assignment of points for that risk factor. Accordingly,
defendant was denied due process (see People v Segura, 136 AD3d
at 497; People v Hackett, 89 AD3d at 1480). Considering the fact
that defendant was never aware of the potential of the assignment
of such points until a point in time where he no longer had an
opportunity to object – his only remaining opportunity to be
heard being explicitly limited to arguing for a downward
departure – he need not have taken any further action to preserve
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the issue for our review (see e.g. People v Hackett, 89 AD3d at
1480). We therefore reverse the order, vacate defendant's risk
level determination, and remit the matter to County Court for a
new risk level determination that complies with Correction Law §
168-n (3) and due process.

     Egan Jr., Devine, Clark and Aarons, JJ., concur.



      ORDERED that the order is reversed, on the law, without
costs, and matter remitted to the County Court of Cortland County
for further proceedings not inconsistent with this Court's
decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
