Articles Posted in Sex Crimes

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A New York Criminal Lawyer said this is a proceeding wherein the defendant who pleads guilty to Rape in the Third Degree under Penal Law § 130.25 by way of an Alford-Serrano 2 plea, notwithstanding his claims of innocence, is convicted of a felony. As a result, he is subject to the collateral consequences of that conviction to include being classified under the Sex Offender Registration Act and being subject to take an HIV test upon the request of the victim.

In 2004, the defendant was indicted in a twenty-eight count indictment charging that he engaged in sexual relations with his 15 year old daughter, during a three month period.
The defendant entered into a negotiated Alford-Serrano plea to one count of rape in the third degree with the assistant district attorney, with the knowledge and consent of the victim’s mother. The court in view of the representations of the prosecutor, and the defense along with the victim’s mother, accepted the plea bargain based on the fact that the victim was of limited intelligence who would be unduly traumatized by testifying in court against her father. While the defendant maintained his innocence he claimed that a jury might convict him of rape in the first degree rather than the statutory rape charge to which he pled.

It is the defendant’s argument that since he took an Alford-Serrano plea, whereby he maintained his innocence, yet acknowledged that the prosecutor may have been able to obtain a conviction, it should not be used against him in calculating his classification as a “sex offender” pursuant to the SORA.

Thereafter, a New York Criminal Lawyer said the assistant district attorney moved pursuant to Criminal Procedure Law section 390.15 that the defendant submit to a human immunodeficiency virus test. Attached to the People’s motion was an application for HIV testing signed by the alleged victim. However, the defendant steadfastly refused to take the HIV test on the ground that the defendant still maintains his innocence and no proof otherwise was ever presented to this court. He also argues that the disclosure of a “positive” test result if it occurred would harm his reputation in the community since the victim’s family has in the past proliferated defamatory written materials attacking him and his employer.

It should be noted that defendant who takes an Alford-Serrano plea does not accept responsibility for the offense. Quite the contrary, the defendant here vehemently protested his guilt and maintains his innocence. However, the defendant cannot have it both ways; he cannot maintain innocence and thereby circumvent the collateral consequences of his plea of guilty or the nature of his plea.

A Queens Criminal Lawyer said it should be noted that under the Sex Offender Registration Act, a court must classify the defendant as a “type of” sex offender. In order to classify the defendant a “Sex Offender Registration Act Risk Assessment Instrument” promulgated by the Board of Examiners of Sex Offenders pursuant to Correction Law section 168-l is utilized. The worksheet designates a numerical value to “risk factors” which are then added together. The resulting sum determines the presumption of the defendant’s risk level under the statute. One of the categories of risk is whether the defendant has accepted responsibility for the crime. In the case at bar, the defendant has not accepted responsibility and still maintains his innocence by way of his Alford-Serrano plea. The defendant challenges the court’s assessing of points for not accepting responsibility for the crime.

Pursuant to subdivision three of Correction Law section 168-d, the court conducted an in camera session where counsel for the defendant and the prosecutor were present. The defendant had waived his right to be present. Each side was granted an opportunity to discuss the various factors on the worksheet. Mathematically, the court assessed a presumptive risk factor total of 80 points, including 10 points for “not accepting responsibility for the offense” due to the Alford-Serrano plea and the comments made to probation in the pre-sentence report.

When a defendant enters an Alford-Serrano plea, although he is not admitting to committing the crime in question, that conviction can still be used against him. It was held that the criminal defendant who enters such a plea is no less guilty than one who is convicted of the same charge by a jury or by a conventional guilty plea, and is subject to no less punishment as held in Merchants Mutual Insurance v. Arzillo.

The court holds that even though the defendant did not admit the offense charged, he did plead guilty to it. Therefore his lack of taking responsibility for his actions is a factor rightfully considered by this court in assessing points against a defendant on the SORA worksheet for classification as a sex offender. In short, the defendant cannot have it both ways. He cannot protest his innocence while pleading guilty by way of an Alford-Serrano plea and then claim that no consequences or conditions subsequent to the plea should apply to him.

The defendant opposes the request that he undergo an HIV test on the grounds that such a test (1) violates his Constitutional rights as an unreasonable search and seizure under the Fourth Amendment of the Constitution of the United States, (2) constitutes retroactive punishment and is violative of the ex post facto clause of the United States Constitution; and (3) that the request was not made by the “victim” as that term is defined in Criminal Procedure Law section 390.15 as the defendant never admitted his guilt.

Criminal Procedure Law section 390.15 which took effect on 1 August 1995 directs that where a defendant is convicted of a felony offense enumerated in any section of article one hundred thirty of the penal law and where “sexual intercourse” or “deviate sexual intercourse” was an element of the crime for which the person was convicted, the court must, upon a request of the victim, order that the defendant submit to human immunodeficiency related testing. The court ordered test must then be performed within fifteen days of the order.

CPL § 390.15[1][b] defines a “victim” as the “person with whom the defendant engaged in an act of sexual intercourse or deviate sexual intercourse “. The victim must file the request in writing with the court prior to a conviction or within ten days after the entry of the defendant’s conviction, unless the court allows it to be filed late for good cause shown at any time before sentence is imposed. Additionally, the statute allows a representative of the victim to request the HIV test if the victim is an infant or incompetent person. The court is further directed to conduct a hearing only if necessary to determine if the applicant is the victim of the offense of which the defendant was convicted.

It was held in Skinner v. Railway Labor Executives’ Ass’n. and Johnetta J. that while it is clear that an intrusion into the body for blood is clearly a search under the Fourth Amendment, the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. Whether or not a search is reasonable is judged by balancing its intrusion on the individuals’ Fourth Amendment interests against its promotion of legitimate governmental interests as was also held in Delaware v. Prouse.

What is reasonable depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself. For searches outside the purely criminal context, the U.S. Supreme Court has developed the “special needs” test. In situations where there is a special need, beyond the normal need for law enforcement,’ “then a warrant and probable cause analysis is impracticable.

Under the special needs doctrine a search is not deemed unreasonable if the government’s interest outweighs the individual’s interest in avoiding the search. Therefore, if the government’s interest in ordering the HIV test outweighs the individual’s interest in not taking the test, the search is reasonable.

Although the defendant argues that the disclosure of the test result could harm his reputation in the community, this argument must be weighed against the fact that the order of the court granting such a test and all related papers would be sealed by the court. Additionally, the test results are only given to the person making the application. The person making the request is only permitted to re-disclose the information to her immediate family, guardian, physician, attorney and mental health provider.

Also, the court notes that the procedure itself in obtaining a blood sample is not “brutal,” “offensive” or “shocking to the conscience.”

The defendant claims that the state’s interest in obtaining the results of the HIV test is minimal as it will have no medical utility. Dr. N, a physician associated with the St. Vincent’s Hospital AIDS Center, stated, in an affidavit appended to the motion, that although immediate compulsory testing of a defendant accused of a crime involving sexual intercourse would assist in treating the victim, it is not helpful in this case. He states that while someone can immediately upon infection receive a series of treatments which would prevent the seroconversion process, no such benefit would occur here. The doctor also states that nearly all persons infected by HIV will test positive within six months of infection by the virus. Additionally, the doctor states that in some “isolated cases” the seroconversion process can take as long as one year. Therefore, the doctor concludes that only during this seroconversion “window” of six months to a year is there a great medical utility to know whether or not the defendant was infected with the HIV virus.

In the case at bar, the alleged incidents occurred more than 2 1/2 years ago. Therefore, the doctor concludes, the only reliable test is one which would be performed on the victim herself and that a test on the defendant at such a late date does not have any medical utility.
While the court agrees that scientifically an HIV test of the defendant taken 2 1/2 years after the alleged rape may have limited utility, there is no provision to direct the victim to take an HIV test as that would prove to be more relevant to the victim. However, some courts have concluded that the fact that the test of the assailant’s blood would not be conclusive does not defeat the government’s interest.

The court holds that the government’s interests clearly outweigh the defendant’s right to privacy in this matter. Accordingly, the testing of his blood is not an unreasonable search and seizure.

The defense claims that this law would violate the prohibition of enforcement of ex post facto laws contained in Article 1, section 10 of the U.S. Constitution. It is the defendant’s contention that the statute is penal in nature based on his fear that the victim’s family would proliferate the results of the test in the community and hurt his reputation. It must be said that the defendant’s fear is not unwarranted as the victim’s family did place signs concerning the arrest of the defendant in areas of Staten Island where the defendant works and resides.

The court notes the ruling in People v. McVickers wherein the California Supreme Court en banc held that mandatory AIDS testing did not violate the ex post facto clause of the Constitution. The court’s rationale was that a blood test is hardly “punishment” since such tests have become routine in our lives and the procedure involves no risk, trauma, or pain. Whatever slight discomfort or inconvenience the defendant might experience from the drawing of blood does not rise to the level of punishment. Also, in People v. Doe, the Nassau County Court held that the ex post facto clause was not violated since the statute is intended, not to punish, but to accomplish another legitimate governmental purpose–to ease the trauma of [the] victim of a sex crime with respect to the HIV related disease.

Accordingly, the court finds that the HIV testing statute does not violate the ex post facto clause of the Constitution.

In the case at bar, the defendant is convicted of Rape in the Third Degree and his daughter is the “victim.” The defense states that since there is no evidence that the defendant had sexual relations with his daughter and maintains that he is innocent of the crime there is no “victim.”
The court finds that this is not the case. The court’s discussion of the ramifications of the Alford-Serrano plea discussed above is equally applicable here. The victim’s request made as part of a motion by the People will be treated as made on behalf of the victim.

Therefore, the court holds that the Sex Offender Registration Act Risk Assessment Instrument points allocated against the defendant for failure to take responsibility were proper. Moreover, the request that the defendant be tested for HIV is permissible and constitutional.
Accordingly, the defendant’s motion is denied.
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MHLS rejects the definition of “probable cause” that has been equated with “reasonable cause.” Where, as here, there is significant information and data for the court to consider, including the testimony of mental health professionals based on observation and test results. MHLS asserts that a “more probable than not” standard should apply.

In contrast, the State urges use of less stringency, relying on State of New York v Pedraza wherein in the context of a Mental Hygiene Law article 10 probable cause proceeding, the court adopted the standard applicable at a preliminary hearing, namely, whether there exists reasonable cause to believe explaining that all the court is inquiring into at this early stage is whether there exists sufficient evidence to proceed to trial.

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On redirect, Dr. J reiterated that he did not believe that parole supervision of O.V. would be sufficient as a protection to the community. Dr. J concluded with a reasonable degree of psychiatric certainty that O.V. does pose a danger to society.

Mental Hygiene Law article 10 provides that after a case review team, consisting of at least two mental health professionals under Mental Hygiene Law § 10.05 [a], finds that an individual is “a sex offender requiring civil management,” the Attorney General may file a sex offender civil management petition in Supreme Court. The petition must contain a statement or statements alleging facts of an evidentiary character tending to support the allegation that the respondent is a sex crimes offender requiring civil management.

After a petition is filed, the act directs that Supreme Court shall conduct a hearing without a jury to determine whether there is probable cause to believe that the respondent is a sex offender requiring civil management.

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While in prison, O.V. was accused of sexual assault of a nurse. Dr. J concluded that pursuant to the Diagnostic and Statistical Manual, Fourth Revision (DSM-IV) of the American Psychiatric Association, O.V. suffers from three separate disorders: polysubstance dependence, antisocial personality disorder and paraphilia.

Dr. J opined that O.V. suffers from polysubstance dependence, a severe form of being addicted to multiple substances at the same time while meeting other specific criteria for the disease. Dr. J stated that O.V. is unable to control his urges to use drugs, which includes use of opiates. He set forth that O.V. is predisposed to commit all sorts of crimes and he is specifically at risk to commit further sex crimesusing cocaine offenses and he does pose a danger to the community.

Dr. J further testified that in order to be diagnosed with Axis II disorder of “Antisocial Personality Disorder,” a person must be an adult and meet at least three out of seven different symptomatic and behavioral criteria. He concluded that O.V. meets seven out of seven criteria for that disorder, which are: lack of respect for societal norms; pattern of reckless disregard for the safety of others; deceitfulness; lack of remorse and blaming others for one’s problems; irritability and impulsiveness and inability to maintain consistent employment.

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This is a proceeding wherein the State of New York moves to establish probable cause to believe that O.V. is a “sex offender requiring civil management” pursuant to Mental Hygiene Law article 10, § 10.06 (k).

O.V. opposes the motion.

On 12 December 2007, the court held a hearing to ascertain whether there is probable cause to believe that O.V. is a sex crimes offender requiring civil management.

At the outset, the State established that, on 18 May 1979, O.V. was convicted of two counts of rape in the first degree and two counts of criminal possession of a weapon, a knife, in the fourth degree. He was sentenced to 10 to 25 years imprisonment. In November 1999, in preparation for parole release, O.V. signed a sex offender registration form, in which he agreed, among other conditions, to attend a sex offender treatment program.

O.V.’s parole was revoked five months after his release based on his failure to participate in the Metropolitan Health Center Sex Offender program. O.V.’s excuse was it was just impossible for him to attend because he just didn’t have time.

O.V. was evaluated by two psychiatrists and found to be dangerous due to his antisocial personality disorder, polysubstance dependence and his predisposition to commit sex crimes before he was to be paroled a second time.

The State called Dr. J, its only witness, a forensic psychiatrist, board certified in both psychiatry and in forensic psychiatry, who is employed at Kirby Forensic Psychiatric Center and evaluated respondent O.V. in accordance with Mental Hygiene Law article 10.

Dr. J explained that before meeting with O.V., he reviewed all documents relating to the case, and that after the interview, he prepared a report, which he referred to during the course of his testimony. He said that they spoke about the instant offenses which involved two rapes, his involvement with drug and substance abuse treatment prior to his incarceration, the events during incarceration including disciplinary incidents, his release on parole and subsequent violation of parole five months later for failing to attend the sex offender treatment as mandated, what he considered might have motivated him to commit his sex offenses, his history of suicide gestures and whether he was really suicidal at the time and his involvement in treatment at Kirby Forensic Psychiatric Center.

Dr. J set forth that O.V. informed him that he raped two women because they reminded him of his mother. He also said regarding the instant offenses that they were done out of anger. He said that he was on his way to the methadone clinic to get his methadone when he committed the offenses. With respect to O.V.’s drug history, Dr. J testified that O.V. told him that he had been on methadone and was attending a methadone clinic but that he does not believe that he needs ongoing substance treatment or that he is at risk to use drugs in the future. O.V. informed Dr. J that even though he had used drugs in prison, he didn’t consider himself to be at risk now, and that if released, he would be able to prove that.

To Be Cont…
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In the absence of any reason to conclude that the Legislature in amending SORA in 1999 did not intend the word conviction to have the same statutory meaning given that term in the Criminal Procedure Law, we decline to interpret this important provision of SORA in a manner that would lead to unintended and absurd consequences for a New York resident based upon a foreign-jurisdiction guilty plea to a felony sex offense that requires lifelong registration in that jurisdiction. That petitioner received a discretionary, alternative adjudication (not available in New York) upon his guilty plea to a felony sex offense requiring life-long sex offender registration in that jurisdiction does not obviate the remedial objectives of SORA, which is designed to assess the offender’s risk of recidivism and the particularized threat posed to and notification of citizens of this state.

Finally, the Supreme Court correctly rejected the petitioner’s other contention that he is not required to register under SORA because his 1994 Texas deferred conviction was rendered prior to SORA’s original effective date in 1996. When the Legislature amended SORA to require offenders to register for felony convictions requiring registration in other jurisdictions, it specifically provided that those amendments shall apply to persons convicted of an offense committed prior to such date who on such date, have not completed service of the sentence imposed thereon. The petitioner’s 10-year period of community supervision was still being served in 2000 and was not completed until March 31, 2004 and, thus, the amended registration requirement applied to him. Community supervision, as imposed by the Texas court is akin to a sentence of probation in New York in which reasonable conditions may be imposed, and the violation of which may result in the offender’s arrest, detention and revocation of probation and imposition of a term of incarceration. Thus, the Board properly determined that the petitioner is required to register as a sex offender in New York, and DCJS was authorized to require the petitioner to submit the requested Internet-related information.

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Respondents filed a cross motion to dismiss petitioner’s Article 78 petition. Petitioner filed an Article 78 petition to vacate the determination by respondents that he is a “sex offender,” as defined by Correction Law § 168-a (2) and directing that petitioner be removed from the sex offender registry.

A New York Sex Crimes attorney said that Petitioner is currently a prisoner incarcerated at Five Points Correctional Facility, which is located in Seneca County. He is serving a five-year sentence based on his conviction by his plea of guilty to robbery. Thereafter, petitioner was arrested in the State of Washington and charged with the crimes of rape and kidnaping in the first degree. The arrest report designates the ages of the victims as 16 and 17. Petitioner entered into an “Alford” plea to two counts of unlawful imprisonment. Petitioner was sentenced to eight months of prison time for each count, plus a year of community supervision.

Petitioner was not required to register as a sex offender due to the language of his plea, and due to changes in the Washington statutes at the time he was released.

After petitioner was sentenced for the crime committed in New York, he received a notification from respondents that he was required to register and be “risk assessed” as a sex offender. In New York, a person is required to register as a sex offender in New York, even if he did not have to register in another state, provided that he was convicted of certain crimes. Under New York law, someone convicted of unlawful imprisonment must register as a sex offender, regardless of the victims’ ages. Petitioner was informed that, although he would be entitled to a Sex Offender Registration hearing (SORA) to officially determine his level notification, the Board recommended to the Court and to the District Attorney that petitioner be classified as a level three sex offender, based on his prior criminal history and his activity after being released from prison.

Before the SORA hearing, petitioner’s attorney wrote a letter to the State of New York Division of Criminal Justice Services requesting that petitioner be declassified as a sex offender. In response, he received a letter, which stated, please be advised that it was, and continues to be, the position of the Board of Examiners of Sex Offenders that petitioner must register as a sex offender.”

Petitioner’s attorney also wrote letters to the judge who would be assigned to petitioner’s case to determine solely petitioner’s classification level. A hearing was held to determine petitioner’s level of notification. Petitioner was classified as a level three sex offender.
A CPLR Article 78 proceeding against a public body or officer “must be commenced within four months after the determination to be reviewed becomes final and binding (CPLR 217 [1]).” An agency determination is final-triggering the statute of limitations-when the petitioner is aggrieved by the determination.

Petitioner received a letter from the Board which notified him that he was required to register with the New York State Sex Offender Registry. The letter also stated, “[t]his is the final decision of the Board of Examiners of Sex Offenders. If you are aggrieved by this final decision, you may commence a proceeding for judicial review in accordance with Article 78 of the Civil Practice Law and Rules.”

According to Correction Law § 168-k (2), the Board is the agency which determines whether a person convicted of a sex crimes in a foreign jurisdiction is required to register in New York. The county or supreme court in the county of residence decides the notification level and length of registration. Therefore, the appropriate way to challenge the Board’s classification of petitioner as a sex offender is through an Article 78 proceeding, which is a recent New York County case, the petitioner was required to register as a sex offender in Vermont and the Board determined that, after he established residency in New York, he was also required to register there. Petitioner brought a motion to dismiss under the SORA.

The court held that it lacked the jurisdiction to review the Board’s determination that petitioner was a sex offender, that the Board is empowered to make the initial determination and that at petitioner’s SORA’s hearing, the court is not evaluating whether the Vermont statute is equivalent to the New York statute. The court also concluded that an Article 78 proceeding was the only appropriate means to review the Board’s decision, and since petitioner did not file one, his petition was dismissed.

In the present case, petitioner did not file an Article 78 proceeding challenging the Board’s initial determination until nearly two years after its initial determination. Accordingly, petitioner has exceeded the statute of limitations, and his petition must be dismissed.
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Pursuant to Correction Law, certain defendants who reside in New York and were convicted of sex offenses in other jurisdictions must register as sex offenders in New York. As relevant here, that section provides that a registerable sex offense includes a conviction of felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the convictions occurred. The petitioner’s principal contention is that the deferred adjudication he received upon his guilty plea is not a conviction under the Texas law and, thus, while he is concededly required to register as a sex offender for life in that jurisdiction, he is not required to register in New York under Correction Law. This argument is untenable.

While SORA does not define conviction, it is appropriate to look to CPL (Criminal Procedure Law), which unequivocally provides that a conviction includes the entry of a plea of guilty to an accusatory instrument (or counts thereof). Indeed, a guilty plea qualifies as a conviction in this state, even before sentencing. Here, the Texas court records reflect that petitioner entered a plea of guilty to a sex offense and said plea was received by the court and entered of record as the plea of the said defendant and, thereafter, the adjudication of guilt was deferred and community supervision and other conditions imposed. As it is undisputed that the underlying Texas sex offense to which the petitioner entered a guilty plea was a felony that required registration as a sex offender in that jurisdiction for life, and entry of a guilty plea constitutes a conviction under New York law, the Board correctly determined that petitioner was required to register as a sex offender under Correction Law, notwithstanding that he received a discretionary deferred adjudication under Texas criminal procedure upon that guilty plea.

Notably, for legitimate policy reasons, SORA does not provide that the various laws of other jurisdictions will control in the determination of whether an admitted, registered sex offender in that jurisdiction must register in this state upon relocating here. Whether petitioner is required to register in this state should ultimately be resolved as a matter of New York law, with the aim of giving effect to the Legislature’s remedial intent. In so doing, we recognize that enforcement of our SORA provisions is a proper exercise of this state’s police powers.

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In 1994, the petitioner entered a guilty plea as charged in an indictment to first degree aggravated sexual assault of a child, a felony stemming from charges he subjected a 10-year-old relative to sexual contact on several occasions. The court, acting in its discretion under the Code of Criminal Procedure, imposed a deferred adjudication of guilt, suspended imposition of a prison sentence, and placed the petitioner under the maximum 10-year term of community supervision, akin to probation, with 26 terms and conditions, and community service. As a result of the plea, he is required to annually register as a sex offender, for life.

After the petitioner moved to New York, the respondent Board of Examiners of Sex Offenders notified him by letter that he was required to register in New York under the Sex Offender Registration Act based upon that his Texas felony sex offense for which he was required to register as a sex offender in that jurisdiction. Additionally, the respondent Division of Criminal Justice Services notified him by letter that he was also required to register any Internet accounts (with service providers) belonging to him and any e-mail addresses and screen names used by him for Internet chats, social networking or instant messaging. In June 2008, the Board completed a risk level assessment of the petitioner, and made a risk level recommendation to the court in New York County, the county of the petitioner’s residence.

The petitioner commenced his CPLR (Civil Practice and Law Rules) proceeding in Albany County seeking, among other things, reversal of the Board’s determination that he is required to register as a sex offender in New York and of DCJS’s Internet access disclosure directive. The Supreme Court held that the Board had properly determined that he is a sex offender required to register under SORA, and dismissed the petition. He appeals.

To Be Cont….
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A person claiming to have been deprived of effective assistance of counsel has the burden of demonstrating that counsel failed to provide “meaningful representation,” under the totality of the circumstances existing at the time of representation. Under the federal constitution, a defendant is entitled to “reasonably effective assistance, which, in light of all the circumstances, does not fall “outside the wide range of professionally competent assistance.” Consistent with those principles, counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Defendant claims that his plea was involuntary because he was not informed that he would be subject to the registration requirements of the Sex Crimes Offenders Registration Act (“SORA”). This claim is without merit because the statute had not been enacted at the time of Defendant’s plea. SORA was enacted in July 1995, and became effective on January 1, 1996. The statute provided that all individuals convicted of a sex offense who are on parole, on probation or incarcerated and serving a sentence for such offense as of January 21, 1996, are subject to SORA. The maximum expiration date of the sentence imposed for Defendant’s conviction of the instant sex offense was in 1981. Thus Defendant had long completed the sentence for his sex crime conviction before the enactment of SORA.

Defendant asserts in his motion that had he “known that twenty-one years after plea and sixteen years after the case had expired he would be required to register as a level three sexual predator for a period of ten years and then ten years later be told that defendant would be required to register for life, surely defendant would not have pled.

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