No. 100 People v Duane Charache (papers sealed)

Duane Charache is asking the Court to invalidate his classification as a risk level three sex offender and order a new hearing due to the prosecution's failure to provide required notice of its intention to seek a higher risk level determination than that recommended by the State Board of Examiners of Sex Offenders.

The case stems from an incident in the Town of Bethany, Genesee County, in July 2001, when
Charache was 18 years old and drinking vodka with his girlfriend, a male friend, and a 15-year-old girl he did not know. The four played cards and drank until the other boy passed out and the girls began vomiting. The following day the 15-year-old girl alleged that later in the night, while the other two slept, Charache had nonconsensual sexual intercourse with her. He was convicted at trial of first degree sexual abuse, first degree unlawfully dealing with a child and endangering the welfare of a child and was sentenced to two years in prison.

As his release date neared, the Board of Examiners of Sex Offenders prepared a Risk Assessment Instrument (RAI) in which it assessed 125 points against Charache, which would place him in the level three classification. However, the Board recommended a downward departure to risk level two because, among other things, Charache had graduated from high school, maintained employment,
and had no prior criminal history or predatory activity.

The prosecution opposed the downward departure at a hearing in Genesee County Court. Charache did not object to the prosecution's failure to comply with Correction Law § 168-n(3), which requires it to give notice to the court and the sex offender at least ten days prior to the hearing if it intends to seek a risk level determination that differs from the recommendation of the Board. County Court reduced Charache's RAI score to 115, but rejected the Board's recommendation and designated him a level three offender, citing his failure to participate in sex offender treatment programs while in prison.

The Appellate Division, Fourth Department affirmed, finding that County Court acted within its discretion and that its determination was supported by the record. The Appellate Division declined to review Charache's claim that he was denied due process by the prosecution's failure to provide timely notice under section 168-n(3), saying he failed to preserve the issue by objection at trial as required by Fourth Department rulings in People v Smith (17 AD3d 1045) and People v Girup (9AD3d 913).

Charache argues preservation is not required. He relies primarily on Third Department cases, including People v MacNeil (283 AD2d 835) and People v Davila (299 AD2d 573), which held that
prosecutors' failure to comply with the statute's notice requirements deprived defendants of a
meaningful opportunity to be heard and that their failure to object at the hearing did not indicate that they "knowingly and intelligently waived this due process right."