By Jessica Dye 

NEW YORK, Dec 20 (Reuters) - A deported sex offender's due process rights were violated when he was not notified about a hearing to designate his post-release risk level.

The Appellate Division, Second Department, held that Gaspari Gutierrez-Lucero had a constitutional right to be at a hearing to designate his risk level under the Sex Offender Registration Act, even though he received the least restrictive classification, Level 1.

Under SORA, convicted sex offenders are entitled to a court hearing to determine the offense level at which they will be required to register after they are released into the community. There are three different levels for risk of reoffending, 1 being low, 2 moderate and 3 high.

"Even where a sex offender is adjudicated a level one sex offender, due process requirements must be satisfied," Justice Reinaldo Rivera wrote for the unanimous appellate panel.

The ruling reversed Gutierrez-Lucero's designation and sent the case back to the Kings County Supreme Court for further proceedings.

Gutierrez-Lucero was convicted in 2003 of attempted sodomy and sentenced to 3-1/2 years in prison.

After his release, Brooklyn court officials sent notice to the prison where Gutierrez-Lucero had been incarcerated, informing him that there would be a hearing to determine his post-release risk level. A day later, immigration records showed that Gutierrez-Lucero, who was in the U.S. illegally, was deported to Mexico, the ruling stated.

Gutierrez-Lucero's lawyer said his client had never received notice of the hearing. Nevertheless, the hearing proceeded, over the objections of Gutierrez-Lucero's lawyer and prosecutors, who said Gutierrez-Lucero had not waived his right to be present.

Kings County Supreme Court Justice Michael Brennan said the deportation constituted a "de facto waiver" and designated him a Level 2 offender.

'OFFENSIVE'

A week later, Brennan held another hearing, and Gutierrez-Lucero was once again absent. The judge said he had reconsidered his decision. "(B)alancing the interest of the due process rights of the defendant with the interest and the protection of the public," Brennan said, he designated Gutierrez-Lucero a Level 1 offender.

Lawyers appointed to represent Gutierrez-Lucero, whose whereabouts are unknown, appealed. Citing a 1998 ruling from the Southern District of New York, Doe v. Pataki, they argued there were no exceptions to a sex offender's right to "a full and fair opportunity to be heard" before being designated under SORA.

The Second Department agreed.

"The Supreme Court's attempt to fashion a 'remedy' and make an 'exception' to Doe v Pataki is offensive to the constitutional principles of due process and cannot be sustained in law and reason," Rivera wrote.

Although public safety is one goal of the law, "that goal must invariably co-exist with the fundamental elements of due process, namely, notice and an opportunity to be heard, afforded to all sex offenders facing risk level classification under SORA," he added.

Justices Thomas Dickerson, Cheryl Chambers and Leonard Austin joined the opinion.

A lawyer representing Gutierrez-Lucero, William Kastin, called the ruling an "excellent decision."

A spokesman said the Brooklyn district attorney's office is reviewing the ruling.

The case is People v. Gutierrez-Lucero, New York State Supreme Court, Appellate Division, Second Department, No. 2011-00644.

For the people: Leonard Joblove and Morgan Dennehy of the Brooklyn district attorney's office.

For Gutierrez-Lucero: William Kastin and David Lowry of Appellate Advocates.

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