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Appellant Challenges Level 1 Sex Offender Designation


By order of the Supreme Court on May 13, 2016, which heard a case against the defendant who is a level 1 sex offender. The case was unanimously affirmed.

The question before the court was whether the defendant should be required to register as a level one sex offender due to his conviction, because of unlawful surveillance by the defendant. The defendant was accused of making cell phone videos under women’s dresses on the subway. The matter is appealable but the issue the defendant raises isn’t triable.

The defendant made his motion via Correction Law 168-a(2)(e) which states that a conviction of unlawful surveillance in the 2nd (Penal Law 250.45(2), (3), or (4) is considered a sex offense. The caveat with this interpretation of the law is that it applies unless the application would be considered “unduly harsh.”  The court argues that this motion can only be brought before the trial court prior to determining whether the defendant is a sex offender.

The court argues that the statute doesn’t allow the SORA court jurisdiction to determine a motion under Correction Law 168-a(2)(e). The court notes that the provision gives the duty of ruling to the trial court, but we don’t consider the use of this phrase to be sufficient for the court’s determination. This is because it is open-ended enough to not to be limited to the court that hears the defendant’s case at trial. Correction Law 168 (d)(1)(a) describes the duties of the court and provides a better picture of intent, and that the certification of sex offender occurs upon conviction.

This view is consistent with the case People v. Miquel 140 AD3 497 [1st Department 2016], which held that the sex offender certification is part of the judgment of conviction and the proper time for challenging that is on appeal from the judgment. In this case, the court found that the defendant’s contention that his underlying felony was not an offense that required SORA registration, brought up questions of the propriety of certification and that the SORA’s treatment of the issue was academic and unrenewable on appeal.

The defendant relies on People v. Simmons 129 AD3 520 and People v. Linden 19 NY3d 271. This court concludes that neither argument is valid. In the Simmons case, the argument was rejected at the trial court and in the SORA court. The argument was that the defendant should be exempt from SORA registration due to Correction Law 168-a(2)(e). No one addressed whether the defendant’s appeal of his sex offender certification was properly before the court.

The defendant’s reliance on the Linden case was also misplaced. The court there held that the defendant could challenge a determination by the Board of Examiners of sex offenders and that he was obligated to register due to an out of state conviction. Linden facts were distinguishable, and it doesn’t establish that the SORA court can decide all issues of registerability. That doesn’t apply to the present case.

The court here finds that as pertaining to the issue of reviewability, requiring the defendant to register would not be unduly harsh.

If you have been convicted of a sex crime, it is important to seek experienced legal representation. If convicted, you could be facing harsh penalties. Speak to an experienced lawyer at Stephen Bilkis and Associates for guidance and a free consultation. They have offices throughout the New York area, including locations in Manhattan, the Bronx, Brooklyn, Queens, Staten Island, Nassau County, Suffolk County and Westchester County. Call them today for an appointment at 1-800-NYNYLAW.

2018 NY Slip 00005


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