Zachary Margulis-Ohnuma, Esq., for appellant.
District Attorney Queens County, Jonathan V. Brewer, Esq.,
PRESENT: MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P.
from an order of the Criminal Court of the City of New York,
Queens County (Dorothy Chin Brandt, J.), entered June 2,
2015. The order, in effect, dismissed defendant's
petition to be relieved of registering as a sex offender, to
strike his name from the sex offender registry maintained by
the New York State Division of Criminal Justice Services
(DCJS), and to enjoin DCJS from publishing his identity to
other governmental entities or the public.
that the order is affirmed, without costs.
1999, defendant pleaded guilty to one count of attempted
possessing a sexual performance by a child (Penal Law
§§ 110.00, 263.16), a class A misdemeanor. He was
sentenced to three years' probation and designated a
level one sex offender, which designation, at that time,
required him to register as a sex offender for a period of 10
years (see Correction Law former § 168-h, as
added by L 1995, ch 192, § 2). In June 2015, defendant
petitioned the Criminal Court, among other things, to be
relieved of his registration requirements. He alleged that he
had complied with the conditions of his probation and his
obligations under the Sex Offender Registration Act (SORA).
The court denied the petition on the ground that defendant,
designated as a level one sex offender, had no statutory
right to petition the court for such relief.
originally enacted, Correction Law former § 168-o (1)
(as added by L 1995, ch 192, § 2) provided, in part,
that "[a]ny sex offender required to register pursuant
to this article may be relieved of any further duty to
register upon the granting of a petition for relief by the
sentencing court." In 2006, SORA was amended to increase
the period of registration for level one sex offenders from
10 to 20 years (see Correction Law former §
168-h , as amended by L 2006, ch 1, § 3) and the
period of registration for higher risk sex offenders (levels
two and three) was made an annual lifetime registration
(see Correction Law § 168-h , , as
amended by L 2006, ch 1, § 3).
months after defendant pleaded guilty, Correction Law former
§ 168-o (1) was amended (see Correction Law
§ 168-o , as amended by L 1999, ch 453, § 11) to
provide that "[a]ny sex offender required to register or
verify pursuant to this article who has been registered for a
minimum period of ten years may be relieved of any further
duty to register upon the granting of a petition for
relief." Subsequently, in 2006, the New York State
Legislature enacted the current version of Correction Law
§ 168-o (1), whereby the eligibility to petition for
relief from registering was limited to level two sex
offenders who had already been registered for a period of 30
appeal, defendant contends that any amendment to Correction
Law § 168-o (1), which no longer authorizes level one
sex offenders to petition for relief from registering, may
not be applied to him retroactively.
is a fundamental canon of statutory construction that
retroactive operation is not favored by courts and statutes
will not be given such construction unless the language
expressly or by necessary implication requires it. An equally
settled maxim is that remedial legislation or statutes
governing procedural matters should be applied
retroactively" (Majewski v Broadalbin- Perth Cent.
School Dist., 91 N.Y.2d 577, 584 ; see
McKinney's Cons Laws of NY, Book 1, Statutes § 55).
The determination of whether a statute should be given
retroactive effect may require a search of legislative intent
(see McKinney's Cons Laws of NY, Book 1,
Statutes § 51). The enabling legislation for Correction
Law § 168-o (1) (as amended by L 2006, ch 1, § 6),
which amendment took effect immediately on January 18, 2006,
act... shall apply to all sex offenders registered or
required to register immediately prior to the effective date
of this act, or who are required to register on or after such
of the foregoing, there can be no doubt that the legislature
intended Correction Law § 168-o (1) to be applied
retroactively. Consequently, as defendant is designated a
level one sex offender, he has no statutory right to petition
for relief from registration (see Correction Law
§ 168-o ; People v Wyatt, 89 A.D.3d 112, 125
), and his petition was properly dismissed.
the order is affirmed.
P.J., Weston and ...