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People v. Barney
Citation: 2019 NY Slip Op 153Docket: 2017-11245
Court: Appellate Division of the Supreme Court of the State of New York; January 8, 2019; New York; State Appellate Court
Original Court Document: View Document
The Appellate Division, Second Department, reversed an order from the Supreme Court, Queens County, which had designated Brandon D. Barney as a level two sex offender under the Sex Offender Registration Act (SORA) following a hearing on August 3, 2016. The court found that Barney's right to be present at the SORA hearing was violated, constituting a due process issue. Although Barney did not preserve his argument regarding the waiver of his right to attend the hearing for appellate review, the court chose to address it in the interest of justice. To establish a waiver of the right to be present, the prosecution must demonstrate that the defendant was informed of the hearing date, his right to attend, and that the hearing would occur in his absence. The only evidence presented was a statement from the court indicating that the New York City Police Department had notified them off-the-record that Barney resided at a specific Manhattan address and that notice of the hearing was sent there without being returned undeliverable. The court found this insufficient, as there was no indication that Barney explicitly waived his right to be present. Consequently, the appellate court remanded the case to the Supreme Court for a new hearing, ensuring proper notice is given to Barney in accordance with Correction Law. All justices concurred in the decision.