         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1236
KA 11-00285
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PATRICK HACKETT, DEFENDANT-APPELLANT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (NORMAN P. EFFMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Cattaraugus County Court (Larry M.
Himelein, J.), dated January 25, 2010. 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 Cattaraugus County Court for further proceedings in
accordance with the following Memorandum: On appeal from an order
determining that he is a level three risk pursuant to the Sex Offender
Registration Act ([SORA] Correction Law § 168 et seq.), defendant
contends that County Court miscalculated his total risk factor score
in the risk assessment instrument (RAI), and thus mistakenly
determined that he was presumptively a level three risk based on that
score. We agree with defendant. In fact, pursuant to the correct
total risk factor score in the RAI, defendant is presumptively
classified as a level two risk. We note, however, that the court also
sua sponte assessed additional points under risk factor 3 (Number of
Victims) and risk factor 4 (Duration of Offense Conduct with Victim)
in the RAI, which then rendered defendant a presumptive level three
risk. We further agree with defendant that the court violated his due
process rights by sua sponte assessing those additional points. The
due process guarantees in the United States and New York Constitutions
require that a defendant be afforded notice of the hearing to
determine his or her risk level pursuant to SORA and a meaningful
opportunity to respond to the risk level assessment (see § 168-n [3];
People v David W., 95 NY2d 130, 136-140). Here, neither risk factor
was originally selected on the RAI or raised by the People at the SORA
hearing, and defendant learned of the assessment of the additional
points for the first time when the court issued its decision (cf.
People v Wheeler, 59 AD3d 1007, lv denied 12 NY3d 711). We therefore
reverse the order, vacate defendant’s risk level determination, and
                                 -2-                          1236
                                                         KA 11-00285

remit the matter to County Court for a new risk level determination,
and a new hearing if necessary, in compliance with Correction Law §
168-n (3) and defendant’s due process rights.




Entered:   November 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
