State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 20, 2016 519408B 

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THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

DONALD R. GRIEST JR.,

Appellant.

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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
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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