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In re Kasckarow

Supreme Court of New York, Second Department

May 15, 2013

In the Matter of Daniel Kasckarow, appellant,
v.
Board of Examiners of Sex Offenders of State of New York, respondent. Index No. 10237/11

Lynn W. L. Fahey, New York, N.Y. (Anna Pervukhin of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Cecelia C. Chang and Brian A. Sutherland of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, SHERI S. ROMAN, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Examiners of Sex Offenders of the State of New York, dated January 25, 2011, that the petitioner is required to register as a sex offender pursuant to Correction Law article 6-C, the petitioner appeals from a judgment of the Supreme Court, Kings County (Schmidt, J.), dated October 25, 2011, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, without costs or disbursements.

In 1998, the petitioner was charged with indecent assault in Florida, a felony under Florida law (see Florida Statutes Annotated §§ 794.011[1][h]; 800.04[3]). The petitioner pleaded "nolo contendre" to the charge. Pursuant to Fla. Stat. Ann. § 948.01, the Florida court withheld adjudication and imposed five years of probation. As required by Florida law, the petitioner registered as a sex offender in that state (see Fla. Stat. Ann. § 943.0435[1][a][a][I]).

In 2006, the petitioner relocated to New York. The Board of Examiners of Sex Offenders of the State of New York (hereinafter the Board) determined that the petitioner was required to register as a sex offender pursuant to the Sex Offender Registration Act (hereinafter SORA; Correction Law article 6-C). The petitioner commenced this CPLR article 78 proceeding to review that determination.

The Supreme Court did not err in denying the petition and dismissing the proceeding. SORA provides that any "sex offender" must comply with its provisions (see Correction Law § 168-f). A "sex offender" is defined as "any person who is convicted" of a "sex offense" (Correction Law § 168-a[1], [2]). The definition of a "sex offense" with respect to an offense committed in another jurisdiction is "a conviction of [i] an offense in any other jurisdiction which includes all of the essential elements of any such crime" that constitutes a "sex offense" under SORA (Correction Law § 168-a[2][d][i]). The statute also provides that a "sex offense" includes a "conviction of... [ii] a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred" (Correction Law § 168-a[2][d][ii]).

The relevant standard of review pursuant to CPLR 7803(3) is whether the determination of the Board was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion (see Matter of Holcomb v Williams, 72 A.D.3d 687, 688).

The Supreme Court properly determined that the petitioner is subject to the provisions of SORA based upon the Florida disposition, and that the Board did not violate lawful procedure, make an error of law, act arbitrarily and capriciously, or abuse its discretion. It is undisputed that the petitioner was required to register as a sex offender in Florida based on the disposition of a felony charge there. Furthermore, we conclude that the Florida disposition, in which the petitioner pleaded nolo contendere and adjudication was withheld (see Fla. Stat. Ann. § 948.01), constituted a "conviction" within the meaning of SORA (see Correction Law § 168-a[2][d]). The petitioner's nolo contendere plea was similar to an Alford plea (see North Carolina v Alford, 400 U.S. 25), in which a defendant may plead guilty to a crime without admitting culpability (see Matter of Silmon v Travis, 95 N.Y.2d 470). The Court of Appeals has held that "a conviction premised upon an Alford plea may generally be used for the same purposes as any other conviction" (People v Miller, 91 N.Y.2d 372, 378; see Matter of Silmon v Travis, 95 N.Y.2d at 475). Indeed, out-of-state nolo contendere pleas have been recognized as convictions in New York for purposes of second felony offender sentencing (see People v Long, 207 A.D.2d 988, 989), and a New York felony conviction pursuant to an Alford plea may serve as the basis for disbarment of an attorney (see Matter of Hopfl, 48 N.Y.2d 859). By parity of reasoning, an out-of-state nolo contendere plea may be treated as a conviction for purposes of subjecting a person to the requirements of SORA. Accordingly, the petitioner was required to register as a sex offender under SORA and to comply with related requirements imposed by that statute (see Correction Law § 168-a[2][d][ii]; Matter of Smith v Devane, 73 A.D.3d 179, 182-184).

The petitioner's constitutional argument is not properly before this Court (see Charles v Broad St. Dev., LLC, 95 A.D.3d 814; Yeshiva Chasdei Torah v Dell Equity, LLC, 90 A.D.3d 746, 747).

DILLON, J.P., CHAMBERS, AUSTIN and ROMAN, JJ., concur.


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