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In the Matter of Mark H. Dewine v. State of New York Board of Examiners of Sex Offenders

September 30, 2011

IN THE MATTER OF MARK H. DEWINE,
PETITIONER-RESPONDENT,
v.
STATE OF NEW YORK BOARD OF EXAMINERS OF SEX OFFENDERS,
RESPONDENT-APPELLANT.



Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), entered August 12, 2010 in a proceeding pursuant to CPLR article 78.

The opinion of the court was delivered by: Peradotto, J

Matter of Dewine v State of New York Bd. of Examiners of Sex Offenders

Decided on September 30, 2011

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.

OPINION AND

The judgment granted the petition and vacated and annulled the determination of respondent that petitioner is a sex offender subject to registration pursuant to the Sex Offender Registration Act.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the petition is dismissed.

Opinion by Peradotto, J.: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination that he is a sex offender subject to registration pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.). Supreme Court granted the petition and annulled the determination, concluding that petitioner was not subject to SORA's registration requirements. We agree with respondent that petitioner, who was on probation in Wyoming for " [s]ex offense[s]' " within the meaning of Correction Law § 168-a (2) (d) (i) on the effective date of SORA, is required to register as a sex offender in New York. We therefore conclude that the judgment should be reversed and the petition dismissed.

I

SORA, which went into effect on January 21, 1996 (see L 1995, ch 192, § 3), imposes registration requirements on " [s]ex offender[s],' " i.e., "any person who is convicted of" certain sex offenses enumerated in the statute (Correction Law § 168-a [1]). SORA "applies to sex offenders incarcerated or on parole or probation on its effective date, as well as to those sentenced thereafter, thereby imposing its obligations on many persons whose crimes were committed prior to the effective date"(Doe v Pataki, 120 F3d 1263, 1266, cert denied 522 US 1122; see § 168-g; People v Carey, 47 AD3d 1079, 1080, lv dismissed 10 NY3d 893). "Pursuant to Correction Law § 168-a (2) (d), certain defendants convicted of sex offenses in other jurisdictions must register as sex offenders in New York" (People v Kennedy, 7 NY3d 87, 89). As relevant here, "a person convicted of a felony in another jurisdiction . . . has been subject to registration in New York if the foreign offense includes all of the essential elements' of one of the New York offenses listed in SORA" (Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745, 748-749, quoting L 1995, ch 192, § 2). In 1999, the Legislature added another basis for registration arising from a foreign conviction, i.e., that an offender must register in New York if he or she was convicted of a felony "for which the offender is required to register as a sex offender in the jurisdiction in which the conviction ...


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