Gaspari Gutierrez-Lucero was convicted in 2003 of attempted first degree sodomy. The victim was the 6 year old daughter of his girlfriend. He received a sentence of three and a half years in prison and an additional five years of post-release supervision. On January 6, 2011, a hearing was held under the Sex Offender Registration Act (SORA). The purpose of the hearing was to determine the risk level classification of Mr. Gutierrez-Lucero. However since he had been deported, he could not be present at the proceeding to determine his risk level classification. His attorney, at the hearing, claimed the hearing should not go forward because his client was not present and he did not waive his right to appear at the hearing. The Court held since he was deported, he waived his right to be present at the hearing and the hearing could go forward in his absence. At the hearing, Gutierrez-Lucero was adjudged to be a level one or “low risk” offender.
On appeal, Mr. Gutierrez-Lucero’s attorney claimed his due process rights were violated. The Second Department (appeals court) held “[a] dangerous precedent would be established if, as urged by the Supreme Court and the People on appeal, the hearing court could simply obviate due process rights by designating a sex offender in a level one category. This reasoning would render the requirements of the SORA hearing for, the assignment of counsel to represent, a level one sex offender unnecessary.”
The Second Department’s decision clearly indicates individuals convicted of sex crimes are entitled to a hearing before their names can be maintained in the New York State Sex Offender Registry. The court also held that Mr. Gutierrez-Lucero’s deportation does not act as a waiver of his rights to a hearing.
Since Gutierrez-Lucero was convicted of a felony, it is unlikely he will ever be able to come back to the United States to participate in a hearing. How can a hearing be held?