Issue Presented: Did the SORA court’s grant of an upward departure, without advance notice to
the registrant, violate the registrant’s due process rights?

Held: Yes; “due process requires that a SORA defendant receive sufficient notice and an
opportunity to be heard before an upward departure is granted.”

Discussion: At Mr. Worley’s SORA hearing, after declining to assess points recommended by the
Board and finding that Mr. Worley was a presumptive Level 2 registrant, the SORA court
suggested that an upward departure to Level 3 might nonetheless be warranted. Taking the court
up on its invitation to seek an upward departure, the prosecution requested an upward departure
for the first time. Mr. Worley’s counsel objected, arguing that Mr. Worley was entitled to notice
prior to his SORA hearing if the prosecution was seeking an upward departure. The SORA court
disagreed and granted the upward departure, a determination the Appellate Division affirmed.

While the Court of Appeals reached a unanimous decision in Mr. Worley’s favor and all
seven Judges agreed that the Appellate Division’s order affirming the Level 3 adjudication
should be reversed and a new hearing held, the Court split 4 to 3 when it came to explaining the
reasons for that ruling. In a decision by Judge Rivera, which was joined by Chief Judge Wilson
and Judges Troutman and Halligan, the majority found that Mr. Worley’s due process rights were
violated by the SORA court’s failure to give him adequate notice and an opportunity to be heard.
According to the majority, “Once the District Attorney announced its deviation from the reasons
supporting the Board’s proposed risk level classification, defendant was entitled to a sufficient
opportunity to consider and muster evidence in opposition to the request for an upward
departure.”

By contrast, Judge Garcia, who penned a very brief concurring opinion that was joined by
Judges Singas and Cannataro, would have expounded far less about Mr. Worley’s due process
rights. Indeed, Judge Garcia’s concurrence does not mention “due process” at all. Instead, Judge
Garcia simply cites to an earlier case regarding a registrant’s due process right to notice and an
opportunity to be heard in support of the conclusion that “[o]n this unique record, the SORA
court erred in denying defense counsel any opportunity to be heard on the issue of an upward
departure.”

CAL Observes: Trial-level SORA litigants should cite this case whenever the prosecution, with
inadequate notice, offers alternative grounds for the same risk-level determination (or points
assessment) as the Board. Though arguably a plain violation of the Correction Law, it is not
unusual for prosecutors to take the position that notice is required only if they intend to seek
points (or a risk level) entirely distinct from that recommended by the Board (i.e., not for
alternative legal theories). While there is some precedent from the Second Department on this