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The People &C v. Scott Liden

May 3, 2012


The opinion of the court was delivered by: Smith, J.:

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

Rulings of administrative agencies can ordinarily be reviewed only in proceedings under CPLR article 78. We hold, however, that the unusual features of New York's sex offender registration system justify an exception to that rule: A determination by the Board of Examiners of Sex Offenders that a person who committed an offense in another state must register in New York is reviewable in a proceeding to determine the offender's risk level.


Defendant was charged in the state of Washington with raping and kidnaping two teen-aged girls. In 1996, he resolved those charges by pleading guilty to two counts of unlawful imprisonment. He later moved to New York, where he was convicted of a non-sexual crime. This conviction apparently brought his previous record to the attention of the Board of Examiners of Sex Offenders, which determined in 2007 that, because of his Washington conviction, he was required to register under New York's Sex Offender Registration Act (SORA). Defendant did not seek article 78 review of that determination before the time to seek such relief expired.

Having determined that defendant must register, the Board, as SORA requires, made a recommendation to Supreme Court in the county of defendant's residence as to the risk level that should be assigned to him (see Correction Law § 168-k [2]). The Board recommended risk level 3, which reflects a high risk of a repeat offense (see Correction Law § 168-l [6] [c]).

In submissions to the court considering his risk level, defendant argued that he should not have been required to register as a sex offender at all. Defendant pointed out that unlawful imprisonment in the second degree -- the New York crime corresponding to the Washington crime of which defendant was convicted -- is a misdemeanor (see Penal Law § 135.05). Until 2002, a crime committed in another state was defined as a "sex offense" in New York only if it included "all of the essential elements" of a New York "felony" (see former Correction Law § 168-a [2] [b], amended by L 2002, ch 11, § 1). The 2002 amendment, which replaced the word "felony" with the word "crime," applied only to offenses committed on or after its effective date (L 2002, ch 11, § 24). The People now concede that defendant's argument was well-founded, and that the Board's determination requiring him to register was an error.

Supreme Court held, however, that it did not "have jurisdiction to review" the Board's determination. Supreme Court believed itself bound by several Appellate Division decisions holding that a determination of registrability may be challenged only in an article 78 proceeding (see Matter of Mandel, 293 AD2d 750 [2d Dept 2002]; People v Carabello, 309 AD2d 1227 [4th Dept 2003]; People v Williams, 24 AD3d 894 [3d Dept 2005]). In a later order, Supreme Court adjudicated defendant a level 3 sex offender. The Appellate Division affirmed, agreeing with the other Appellate Division Departments that "a person seeking review of the Board's determination that he or she is obligated to register in the first place is required to bring an article 78 proceeding against the Board" (People v Liden, 79 AD3d 598 [1st Dept 2010]). We granted leave to appeal, and now reverse.


The procedure for registration of sex offenders who move to New York from other states is set out in Correction Law § 168-k. Section 168-k (2) says, in relevant part:

"The [Board of Examiners of Sex Offenders] shall determine whether the sex offender is required to register with the [Division of Criminal Justice Services]. If it is determined that the sex offender is required to register . . . the board shall . . . make a recommendation regarding the level of notification . . . This recommendation . . . . shall be submitted by the board to the county court or supreme court and to the district attorney in the county of residence of the sex offender and to the sex offender.

It shall be the duty of the county court or supreme court in the county of residence of the sex offender . . . to determine the level of notification."

Thus the statute assigns the registrability determination to the Board, and the risk level ("level of notification") determination to the court: The Board "shall determine" whether the out-of-state sex offender is required to register, but shall only "make a recommendation" as to the risk level; it is "the duty of the court" to determine the risk level. (By contrast, when a sex offense is committed in New York, both registrability and risk level are decided by a court [see Correction Law § 168-d (l) (a), 168-n (2)].) The statute does not address the question of how an alleged sex offender from another state who thinks the Board has erred in determining that he is required to register may seek judicial review.

The usual way to obtain judicial review of the action of an administrative agency is a proceeding under CPLR article 78 ("Proceeding Against Body or Officer"). Article 78 proceedings are subject to a four-month statute of limitations, running from the time when "the determination to be reviewed becomes final and binding" (CPLR § 217 [1]). We have held that a person challenging an agency determination cannot circumvent the time limitation, or other limitations on article 78 review, by asserting his or her arguments in a different kind of proceeding (see Solnick v Whalen, 49 NY2d 224, 229-230 [1980]; New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194, 201 [1994]; Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, 194 [2007]; cf. Sohn v Calderon, 78 NY2d 755, 767 [1991]). Article 78 normally provides what is in effect an exclusive remedy. We are persuaded, however, that this case calls for an exception to that rule of exclusivity.

An unusual, perhaps unique, feature of a Board determination under Correction Law ยง 168-k (2) is that, when the determination is adverse to the person affected, a judicial proceeding automatically follows. In every such case, the Board must make a recommendation to a court in the county of the offender's residence, and the court then must determine the alleged sex offender's risk level. Where the initial determination that the person must register is disputed, plainly the most efficient course is for the risk level court to resolve the dispute; to have two separate courts examine essentially the same facts -- one to decide registrability in an article 78 proceeding, and the other to decide risk level -- serves no purpose. Recognizing this, a number of trial level courts have held -- in contrast to the Appellate Division holdings we cited above -- that registrability can be considered in the ...

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