SORA Adjudication Reversed & New Hearing Ordered When Judge Upwardly Departed Without Notice or an Opportunity to Be Heard
At the SORA hearing, the hearing judge determined that Mr. Worley scored as a level two. Without any prior notice, the court indicated it would apply an upward departure to level three, citing “extensive disciplinary history.” When defense counsel objected on lack of notice grounds, and stated that the prosecution had not requested an upward departure, the court invited the prosecutor to do so. The prosecutor obliged and asked for an upward departure due to Mr. Worley’s disciplinary history, counsel again objected and stated the defense was entitled to 10 days’ notice, and the court adjudicated Mr. Worley a level three.
The Appellate Division, Second Department, affirmed, holding that the hearing court acted within its discretion to upwardly depart.
The Court of Appeals reversed and remitted for a new SORA hearing. Noting that “the basic hallmarks of due process are notice and an opportunity to be heard,” and that “proper notice is essential” so that individuals are aware at the hearing of the bases for the recommendations and are afforded an opportunity to challenge the grounds, the Court held that the hearing “failed to comport with due process.” Because the prosecution first made the request for an upward departure at the hearing in response to the court’s invitation, the defense was entitled to “a sufficient opportunity to consider and muster evidence in opposition.” The court erred by deciding the issue without an adjournment, without allowing the defense to present rebuttal arguments or collect evidence, and without any input from counsel.
William G. Kastin & Jenna Hymowitz represented Mr. Worley