Reopening Defendant's Risk Level Assessment in New York
In People v. Harris (178 Misc 2d 858, 682 NYS2d 808 [Sup Ct, Queens County 1998]) the court reopened and modified a defendant's risk level assessment even though the original risk level designation was entered into on consent.
In Harris, the State and the defendant stipulated to a level two SORA risk level designation. The court went along with the stipulation and the defendant was classified a level two offender, despite the defendant's prior felony conviction for a sex crime.
This information was unknown to the court because the Board of Examiners failed to provide their recommendation to the court within 60 days of the defendant's release as required by Correction Law 168-l (6).
The Board of Examiners' report was not provided until after the defendant's release date. The defendant was released from custody on April 1, 1998.
In August of 1998 approximately 3 1/2 months after his release, the court received the Board of Examiners' recommendations which requested that the defendant be deemed a level three sexually violent predator because of his prior felony conviction.
The People then made an application to revisit the court's classification in September of 1998, more than four months after the court's original determination. At this proceeding the court reclassified the defendant as a level three offender.
The Harris court based its decision on its inherent power to correct its own record in order to remedy an inadvertent omission in failing to certify a sex offender as mandated by statute.
The court reasoned that but for the stipulation by the People, the defendant would have received a level three risk assessment based on his prior felony conviction for a sex crime.
In giving legal force to the party's stipulation, the court inadvertently abrogated to the parties one of its exclusive functions (Harris at 861).
In reaching this decision, the Harris court recognized that it may not have the power to vacate a stipulated plea and sentence that was originally approved by the court (Harris at 862.)