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CPL 440.10 (1) (g)… cont

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.

Assuming Defendant wishes to bring a motion to challenge his SORA classification, the question to be determined will be whether Defendant’s situation puts him in the category of individuals subject to SORA, i.e., individuals convicted of a sex crime offense who are on parole, on probation or incarcerated and serving a sentence for such offense as of January 21, 1996. The maximum expiration date for Defendant’s sex offense conviction was September 4, 1981. Defendant was sentenced on his 1981 robbery conviction on March 27, 1981, approximately six months prior to the sex conviction expiration date. Defendant was placed on lifetime parole on September 14, 1990, upon his release from the sentence imposed for the robbery conviction. As of January 21, 1996, Defendant was on parole, however, the parole was arguably not for the sex crime offense. A drug was not found.

Accordingly, the court held that, if Defendant’s risk level was assessed administratively, and he has never had a judicial hearing, as appears to be the case, he might now be entitled to a judicial hearing, as well as appointment of counsel for such hearing. In the event Defendant should wish to seek reclassification or to be relieved of any further duty to register there apparently exists no record to permit adequate judicial review. Defendant’s motion to vacate his judgment is denied. However, should Defendant wish to assert any claims with respect to his classification and duties under SORA, he is granted leave to submit a proper motion seeking such relief, including, if warranted, an application for assignment of counsel.

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