Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 5, 2026

2019-04955, (Ind. No. 1394/90)

Mark C. Dillon, J.P.

Deborah A. Dowling

Carl J. Landicino

James P. McCormack, JJ.

APPEAL by the defendant from an order of the Supreme Court (Ira H. Margulis, J.), dated June 10, 2019, and entered in Queens County, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Dowling, J. [*1]

OPINION & ORDER

I. Introduction

This appeal presents us with the opportunity to address as a matter of first impression in this Court whether the Supreme Court exceeded its authority and violated the defendant's right to due process when, after designating the defendant a level three sex offender following a hearing held in accordance with the Sex Offender Registration Act (SORA) (Correction Law article 6-C), it, sua sponte, reopened the SORA hearing to reconsider its initial findings and make a new determination of the defendant's risk level designation. We conclude that the court providently exercised its inherent authority to reopen the SORA hearing to correct its erroneous findings with respect to the defendant's risk level designation and that the defendant's designation as a level three sex offender should not be disturbed.

II. Relevant Facts and Procedural Background

In 1992, the defendant was convicted, upon his plea of guilty, of rape in the first degree (Penal Law § 130.35[1]) for a forcible rape of an 18-year-old female victim in September 1989, when the defendant was 17 years old, and was sentenced to an indeterminate term of imprisonment of two to six years. The defendant's conviction was in satisfaction of an 18-count indictment charging the defendant with, among other crimes, an additional count of rape in the first degree, unlawful imprisonment in the first degree, unlawful imprisonment in the second degree, coercion in the second degree, criminal possession of a weapon in the fourth degree, and criminal use of a firearm in the first degree with respect to the 18-year-old victim, as well as additional counts of rape in the first degree, unlawful imprisonment in the first degree, unlawful imprisonment in the second degree, coercion in the second degree, criminal possession of a weapon in the fourth degree, and assault in the third degree with respect to a 15-year-old female victim for conduct allegedly undertaken by the defendant in November 1988. At the time of the defendant's conviction, he was also serving an indeterminate term of imprisonment of 27⅓ years to life in connection with an unrelated 1991 conviction of murder in the second degree.

After serving more than 25 years in prison, the defendant was granted an open release date of January 29, 2019. In anticipation of the defendant's release from prison, the Board of Examiners of Sex Offenders (hereinafter the Board) prepared a case summary and risk assessment [*2]instrument (hereinafter RAI) in accordance with SORA. The case summary detailed the circumstances of the defendant's actions with respect to the 18-year-old victim in September 1989, as well as his alleged actions with respect to the 15-year-old victim in November 1988, both of which involved a forcible rape at either gunpoint or knifepoint. The Board assessed the defendant a total of 160 points on the RAI, which placed the defendant above the 110-point threshold required to designate him as a presumptive level three sex offender, and recommended that the defendant be designated as a level three sex offender. The Board's point assessment included, inter alia, 20 points under risk factor 3 based upon the number of victims for two victims, 20 points under risk factor 5 based upon a victim aged 11 through 16, 20 points under risk factor 7 based upon a stranger relationship with a victim, 10 points under risk factor 8 based upon the defendant's age at the time of the defendant's first sex crime of 20 or less, and 15 points under risk factor 9 for nature and number of prior crimes based upon the defendant's alleged prior conviction of a nonviolent felony. In March 2019, the Supreme Court conducted a hearing pursuant to SORA to determine the defendant's sex offender risk level designation. The People requested that the court adopt the point assessment recommended by the Board and designate the defendant a level three sex offender. In response, among other things, the defendant challenged the assessment of points under risk factor 3 on the ground that his conviction related to only one victim and not two, as well as the assessment of points under risk factors 7 and 8. The defendant also moved, pro se, for a downward departure from his presumptive risk level.

The Supreme Court, relying on the plea minutes, the Board's RAI, and the case summary, assessed the defendant 120 points on the RAI, which still rendered him a presumptive level three sex offender, denied the defendant's pro se motion for a downward departure from the presumptive risk level, and designated the defendant a level three sex offender. In making its determination, the court adopted the Board's point recommendation, except as to risk factors 3 and 5. With respect to risk factor 3, the court found that no points should be assessed because the crime to which the defendant pleaded guilty involved only one victim, and not two. With respect to risk factor 5, the court found that no points should be assessed because the crime to which the defendant pleaded guilty involved a victim who was older than 16 years old.

Thereafter, in May 2019, the Supreme Court, believing that it had made an error in its determination of the defendant's risk level designation, sua sponte, reopened the SORA hearing so that it could "re-adjudicate" its findings with respect to risk factors 3, 5, and 9. The defendant appeared with counsel at the reopened hearing. The court explained that it had, on its own accord, requested and obtained the grand jury minutes following the initial SORA hearing. Based on the contents of the grand jury minutes, as well as the contents of evidence received at the initial SORA hearing, the court found that it had erred in failing to assess the defendant 20 points under risk factor 3 and 20 points under risk factor 5. The court also found that it had improperly assessed the defendant 15 points under risk factor 9. As a result, in an order dated June 10, 2019, the court assessed the defendant a total of 145 points rather than 120 points, a presumptive level three risk designation, again denied the defendant's pro se motion for a downward departure from his presumptive risk level, and redesignated the defendant a level three sex offender. The defendant appeals.

III. The Defendant's Contentions on Appeal

The defendant contends that the Supreme Court abandoned its role as a neutral arbiter and violated his right to due process when it, sua sponte, obtained the grand jury minutes and reopened the SORA hearing in order to assess points under risk factors 3 and 5. In addition, the defendant contends, inter alia, that he was wrongly assessed points under risk factors 7 and 8. The defendant requests that this Court deduct the points assessed under risk factors 3, 5, 7, and 8, which would lower the defendant's total point assessment to 75, a presumptive level two risk designation, and designate the defendant a level two sex offender.

As a preliminary matter, we note that the defendant's contentions that the Supreme Court abandoned its role as a neutral arbiter and violated his right to due process by, sua sponte, obtaining the grand jury minutes and reopening the SORA hearing are unpreserved for appellate review (see People v Charache, 9 NY3d 829, 830; People v Wise, 127 AD3d 834, 834; People v Chang Soo Park, 43 AD3d 1074). Nevertheless, this Court is vested with the discretion to review unpreserved contentions in the interest of justice (see CPL 470.15[6][a]). We exercise that discretion here and review the defendant's unpreserved contentions in order to clarify the bounds of a SORA court's inherent authority to reopen a SORA hearing to correct erroneous findings with respect to [*3]a defendant's risk level designation (see e.g. People Foster, 87 AD3d 299, 304).

IV. Analysis

In addition to the inherent power of a court to correct mistakes or errors that may be termed clerical in nature (see People v Minaya, 54 NY2d 360, 364), it is now well settled that "[e]very court retains a continuing jurisdiction generally to reconsider any prior intermediate determination it has made" during the pendency of an action or proceeding (Aridas v Caserta, 41 NY2d 1059, 1061; see Liss v Trans Auto Sys., 68 NY2d 15, 20; US Bank N.A. v Cimino, 212 AD3d 683, 684; Matter of Budihas v Board of Educ. of City of N.Y., 285 AD2d 549, 550; People v Lemmons, 270 App Div 828, 828; see also Daniello J.T. v Magen & Co. Inc., 247 AD3d 675, 675; Ocwen Loan Servicing, LLC v Maffett, 225 AD3d 1252, 1253; People v Adams, 219 AD3d 1178; People v Wheeler, 32 AD3d 1107). A court's exercise of this inherent authority is discretionary (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 756) and may be made either upon request by a party, even if such request is made by an untimely motion for leave to reargue, or sua sponte (see Liss v Trans Auto Sys., 68 NY2d at 20 [Supreme Court did not abuse its discretionary power when it, sua sponte, rescinded a prior order in the interest of justice and reconsidered a party's cross-motion to strike an affirmative defense]; Butler v County of Suffolk, 146 AD3d 853, 855 [Supreme Court acted within its authority when it, sua sponte, reconsidered a portion of its own prior order]; Tirado v Miller, 75 AD3d 153, 159 [trial court may act, sua sponte, in reconsidering its own prior interlocutory orders during the pendency of an action in certain circumstances]; Matter of Budihas v Board of Educ. of City of N.Y., 285 AD2d at 549 [Supreme Court did not act improperly in, sua sponte, reconsidering its own prior ruling as to whether the proceeding was time-barred]; see also Daniello J.T. v Magen & Co. Inc., 247 AD3d at 675; Kleinser v Astarita, 61 AD3d 597, 597; People v Wheeler, 32 AD3d 1107; cf. Johnson v Incorporated Vil. of Freeport, 303 AD2d 640, 640 [Supreme Court had no discretion to consider an untimely motion for reargument made well after the time to take an appeal from an order concluding that the action expired]).

This Court has not before had occasion to expressly address whether the inherent authority of a court to reconsider its own intermediate determinations allows a SORA court to, sua sponte, reconsider its determination of a defendant's presumptive risk level designation. However, the Appellate Division, Fourth Department, and the Appellate Division, First Department, have expressly recognized the inherent authority of a SORA court to reopen a hearing to correct or rectify a mistake of law or fact in rendering a SORA decision. In People v Wroten (286 AD2d 189, 190, lv denied 97 NY2d 610), the Fourth Department held, as a matter of first impression in that Court, that a SORA court making a determination of a defendant's presumptive sex offender risk level designation was "authorized to reconsider or correct its determination" of a defendant's presumptive risk level designation upon the People's request. In that case, the County Court, following an initial SORA hearing, designated the defendant a level two sex offender based upon information presented by the People at the SORA hearing. In making its point assessment, the court declined to assess points under a certain risk factor. Thereafter, the People requested that the court reconsider its failure to assess points under the certain risk factor and, upon the court's assessment of those additional points, designate the defendant a level three sex offender. The defendant was remanded to the court for what was characterized as "a re-evalution of the [defendant's] sexual offender level based upon the papers that were received after the original level was set" (id. at 193 [internal quotation marks omitted]). Following the resumed proceedings, the court assessed the additional points requested by the People, which changed the defendant's total point assessment from a presumptive risk level two designation to a presumptive risk level three designation, and designated the defendant a level three sex offender (see id. at 194). On appeal, the Fourth Department, upon considering the inherent power of a court to correct its own mistakes of law or fact, as well as the overriding purposes and objectives of SORA and the ability of either party to take a civil appeal from a risk level determination pursuant to CPLR articles 55, 56, and 57, found no wrong in the County Court's "expeditious correction" of its own error and affirmed the order designating the defendant a level three sex offender (see People v Wroten, 286 AD2d at 195-198; see also People v Hahlbohm, 63 AD3d 706 [SORA court properly exercised its discretion in granting the People's motion to reopen the proceeding and conduct a SORA hearing]; People v Pendergrast, 48 AD3d 356 [SORA court properly exercised its discretion in granting the People's motion to reopen the SORA proceeding where the People had inadvertently consented to an erroneous risk level designation due to a typographical error]; People v Harris, 178 Misc 2d 858 [Crim Ct, Queens County]).

More recently, in People v Adams (219 AD3d 1178), the First Department, citing to [*4]People v Wroten, acknowledged that a SORA court possesses the inherent authority to reopen a hearing to correct a mistake of law or fact made in its initial SORA decision. The First Department explained that such authority "stems from the 'overriding purposes and objectives of SORA' to, inter alia, 'protect [ ] vulnerable populations and . . . the public . . . from potential harm'" (id. at 1183, quoting People v Wroten, 286 AD2d at 196-197). The First Department, in People v Adams, ultimately concluded that the SORA court erred in reopening the hearing under the circumstances presented in that case, since, among other things, the SORA hearing had been reopened to give the People an opportunity to present new evidence regarding the defendant's presumptive risk level designation after the People previously failed to adequately prepare for both the initial SORA hearing and an adjourned hearing, and not to correct a mistake of law or fact in the SORA court's prior determination (see id. at 1183). Thus, as the SORA court did not make a mistake in its initial SORA decision, "there was no basis for the [SORA] court to exercise its inherent authority" to reopen the SORA hearing (id.).

In this case, the Supreme Court's failure to assess points under risk factors 3 and 5 at the initial SORA hearing was affected by errors of fact and law and was erroneous. "In determining the appropriate risk level, the court is not limited to the crime of conviction or what would be admissible at a civil or criminal trial" (People v Hernandez, 163 AD3d 1010, 1010; see People v Smith, 128 AD3d 1189, 1189-1190). "'[T]he court shall review any victim's statement and any relevant materials and evidence submitted,' including 'reliable hearsay evidence submitted by either party'" (People v Hernandez, 163 AD3d at 1011, quoting Correction Law § 168-n[3]). Such evidence may include, inter alia, case summaries prepared by the Board (see People v Mingo, 12 NY3d 563, 572; People v Hernandez, 163 AD3d at 1011). Here, the case summary prepared by the Board, which the People submitted at the initial SORA hearing, and which the Supreme Court relied upon in correcting its initial failure to assess points under risk factors 3 and 5, provided clear and convincing evidence to establish that the defendant raped both the 18-year-old victim for which he entered a plea of guilty to rape in the first degree, as well as a second 15-year-old victim (see People v Lorenzo, 165 AD3d 1297, 1298; see also People v Evans, 241 AD3d 1168, 1169; People v Hyman, 228 AD3d 1080, 1081).

Preventing the Supreme Court from, sua sponte, exercising its inherent authority to correct its own errors of fact and law in failing to assess the defendant points under risk factors 3 and 5 at the initial SORA hearing would undermine the very purpose and objective of SORA and otherwise prevent the expeditious correction of the erroneous determination. "SORA was enacted to protect the public from the danger of sexual recidivism posed by individuals who commit certain sex offenses" (People v Weber, 40 NY3d 206, 209-210; see People v Parris, 153 AD3d 68, 75). "To that end, 'SORA contains a detailed system of registration and community notification, with each sex offender's registration and notification obligations emanating from [their] designated risk level within a three-tiered classification scheme'" (People v Weber, 40 NY3d at 210, quoting People v Cook, 29 NY3d 121, 125; see Correction Law § 168-f, 168-h, 168-l; People v Mingo, 12 NY3d at 571 [SORA "requires individuals convicted of sex offenses to register with law enforcement officials and authorizes the dissemination of certain information about those individuals to vulnerable populations and the public"]). An offender's presumptive risk level designation is determined at a SORA proceeding, which is civil in nature (see People v Pettigrew, 14 NY3d 406, 408; People v Mingo, 12 NY3d at 571; People v Edwards, 246 AD3d 37, 40). The registration period, notification obligations, and disclosure provisions of SORA vary depending upon an offender's risk level designation (see Correction Law §§ 168-h, 168-l; People v Mingo, 12 NY3d at 571). "[T]he ultimate and 'paramount concern' of the SORA risk-level assessment is 'an accurate determination of the risk a sex offender poses to the public'" (People v Perez, 35 NY3d 85, 94, quoting People v Mingo, 12 NY3d at 574; accord People v Weber, 40 NY3d at 216). "Both that concern and the substantial consequences that a SORA classification carries for a defendant underscore the importance of ensuring that the courts correctly assess the risk that an offender poses to the community in making a risk level determination" (People v Weber, 40 NY3d at 216).

Moreover, both the defendant and the People may appeal as of right to the Appellate Division from a SORA court's determination of an offender's risk level designation (see Correction Law § 168-d[3]; CPLR arts 55, 56, 57), thus demonstrating the Legislature's "apparent purpose . . . to facilitate correction of any legally or factually erroneous risk level determination" (People v Wroten, 286 AD2d at 197). Upon such an appeal, the Appellate Division may "reverse, affirm, or modify, wholly or in part," the SORA court's order, including by finding that the SORA court erred [*5]in assessing, or in failing to assess, points under a risk factor (CPLR 5522[a]). The Appellate Division may also remit the matter to the SORA court for further proceedings, where appropriate (see People v Weber, 40 NY3d at 207). "Clearly, the Legislature's interest lies in seeking that a risk level assessment is made—and made correctly—with respect to any sex offender" (People v Wroten, 286 AD2d at 197).

Given the Supreme Court's error, and considering the inherent power of a court to reconsider its own intermediate determinations, together with the overriding purposes and objectives of SORA, we find no wrong in the Supreme Court's sua sponte correction of its initial failure to assess points under risk factors 3 and 5. There is no benefit to a defendant, the People, or the public in prohibiting a SORA court tasked with determining an offender's presumptive risk level from, sua sponte, correcting its own erroneous determination (see People v Adams, 219 AD3d at 1183; People v Hahlbohm, 63 AD3d at 707; People v Wroten, 286 AD2d at 196).

Contrary to the defendant's contention, he was not denied due process by the Supreme Court's exercise of its inherent authority to reopen the SORA hearing to correct its determination as to risk factors 3 and 5. "Significantly, . . . 'SORA is not a penal statute and the registration requirement is not a criminal sentence. Rather than imposing punishment for a past crime, SORA is a remedial statute intended to prevent future crime'" (People v Parris, 153 AD3d at 77, quoting Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745, 752). "Thus, the due process protections required for a risk level classification proceeding are not as extensive as those required in a plenary criminal or civil trial" (People v Parris, 153 AD3d at 77 [internal quotation marks omitted], quoting People v Wells, 138 AD3d 947, 951). Nevertheless, a sex offender facing a risk level designation under SORA is entitled to certain fundamental due process protections, including notice of points sought to be assessed against him or her and an opportunity to be heard regarding the assessment (see People v Thurmond, 210 AD3d 1022, 1025; People v Montufar-Tez, 195 AD3d 1052, 1053; People v Wells, 138 AD3d at 951).

Here, the defendant was provided adequate notice of the Board's recommendation prior to the initial SORA hearing, including the Board's recommendation that 20 points be assessed under risk factor 3 because there were two victims and that 20 points be assessed under risk factor 5 because one of the victims was between 11 and 16 years old and of the contents of the case summary. The People did not seek a determination that differed from the Board's recommendation, neither the Board nor the People changed their recommendations at the reopened hearing, and the Supreme Court did not assess any additional points at the reopened SORA hearing that had not been part of the Board's or the People's recommendation. In addition, the defendant was given a meaningful opportunity to be heard regarding the court's intention to assess points under risk factors 3 and 5 at the reopened SORA hearing (see People v Johnson, 203 AD3d 762; cf. People v Hernandez, 180 AD3d 947).

However, although we conclude that the Supreme Court providently exercised its inherent authority to reopen the hearing to correct its initial failure to assess points under risk factors 3 and 5 and that the defendant was not denied due process by the court's exercise of its inherent authority, we agree with the defendant that the court erred in, sua sponte, obtaining the grand jury minutes and relying on those minutes at the reopened SORA hearing (see Correction Law § 168-n[3]). Nevertheless, given that the case summary provided ample evidence to support the imposition of points under risk factors 3 and 5, under the circumstances of this case, the court's error was harmless (see People v Baxin, 26 NY3d 6, 11-12 ; People v Rodas, 240 AD3d 625, 626; People v Thurmond, 210 AD3d at 1025).

V. Additional Contentions

The defendant contends that the Supreme Court erred in assessing him 20 points under risk factor 7 based on a stranger relationship with the 18-year old victim. We agree with the defendant that the court improperly assessed 20 points under risk factor 7. The Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006) (hereinafter Guidelines) provide that 20 points should be assessed under risk factor 7 if the offender's crime "(i) was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization" (id. at 12). The term "stranger" is defined as "anyone who is not an actual acquaintance of the victim" (id.). Here, the People failed to establish, by clear and convincing evidence, that the 18-year old victim was a stranger to the defendant within the meaning of risk factor 7 (see People v McGraw, 24 AD3d 525, 526). Nevertheless, even with the elimination of 20 points under risk factor 7, the defendant's risk level point assessment is 125 points, which is still [*6]within the range for a presumptive risk level three designation (see People v Gavalo, 235 AD3d 785, 786; People v Perez, 199 AD3d 946).

The defendant also contends that the assessment of 10 points under risk factor 8 based on his age of 20 or less at the time of his first sex crime violated his constitutional right to substantive due process. Contrary to the defendant's contention, he failed to demonstrate that treating him as a higher risk of reoffense because the defendant committed his first sexual offense when he was age 20 or less is not rationally related to the legitimate government interest in protecting the public from sex offenders (see Guidelines at 13; Correction Law § 168-l[5][a]; People v Hart, 228 AD3d 15, 17). Thus, the defendant failed to demonstrate that risk factor 8, as applied to him, violated his constitutional right to substantive due process (see People v Rivera, 234 AD3d 998, 999). The articles, studies, and report relied upon by the defendant in support of his contention were not submitted to the Supreme Court at either the initial or reopened SORA hearing and, thus, are de hors the record (see People v Wallace, 144 AD3d 775, 776; People v Santiago, 137 AD3d 762, 765).

The defendant's remaining contention is without merit.

VI. Conclusion

The Supreme Court properly designated the defendant a level three sex offender. Accordingly, the order is affirmed.

DILLON, J.P., LANDICINO and MCCORMACK, JJ., concur.

ORDERED that the order is affirmed, without costs or disbursements.

ENTER:

Darrell M. Joseph

Clerk of the Court