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
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.
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.
For the people: Leonard Joblove and Morgan Dennehy of the
Brooklyn district attorney's office.
For Gutierrez-Lucero: William Kastin and David Lowry of
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