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 ).” 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.
There are different kinds of sex crimes which our New York Sex Crimes lawyers here in Stephen Bilkis have handled satisfactorily. With the help of our New York Criminal attorneys, we will give you pieces of advice which will be beneficial to your predicaments. If you’re in need and in trouble, don’t hesitate to call us.