S. Dean, Center for Appellate Litigation, New York (Anokhi A.
Shah of counsel), for appellant.
R. Vance, Jr., District Attorney, New York (Kelly L. Smith of
counsel), for respondent.
Friedman, J.P., Gische, Webber, Singh, JJ.
Supreme Court, New York County (Ronald A. Zweibel, J.),
entered on or about May 13, 2016, which adjudicated defendant
a level one sex offender pursuant to the Sex Offender
Registration Act (Correction Law art 6-C), unanimously
affirmed, without costs.
question of whether defendant should be required, as a matter
of the court's discretion, to register as a sex offender
as the result of his conviction of unlawful surveillance (for
making cell phone videos under women's dresses on the
subway) is not properly before us on this appeal. Because the
order adjudicating defendant a sex offender is appealable, we
need not dismiss the appeal. However, the issue defendant
wishes to raise is not reviewable.
challenges the SORA hearing court's denial of his motion
made pursuant to Correction Law § 168-a(2)(e), which
provides, uniquely, that a conviction of unlawful
surveillance in the second degree under Penal Law §
250.45(2), (3), or (4) constitutes a sex offense requiring
registration, except where, "upon motion by the
defendant, the trial court, having regard to the nature and
circumstances of the crime and to the history and character
of the defendant, is of the opinion that registration would
be unduly harsh and inappropriate." The People argue
that such a motion can only properly be brought before the
trial court, before its determination whether a defendant is
to be certified as a sex offender, and that even if a SORA
court is authorized to rule on such a motion, defendant's
motion was properly denied.
agree with the People that the statute does not give a SORA
court the power to determine a motion under Correction Law
§ 168-a(2)(e). While we find it significant that the
provision assigns the duty of ruling on the motion to
"the trial court" - notably the only time that
phrase is used in SORA's numerous sections - we do not
consider the use of the phrase to be a sufficient basis for
our interpretation, because it is arguably malleable enough
not to be limited to the court that actually presided over
the defendant's trial. However, Correction Law §
168-d(1)(a), describing the "duties of the court, "
provides a more definite indication of statutory intent, by
way of language that clearly contemplates that certification
as a sex offender occurs "upon conviction" and
after consideration of any motion pursuant to Correction Law
§ 168-a(2)(e). Nothing else in the statutory scheme
contradicts this understanding.
reading of section § 168-a(2)(e) is consistent with our
decision in People v Miguel (140 A.D.3d 497, 497
[1st Dept 2016], lv denied 28 N.Y.3d 908');">28 N.Y.3d 908 ), in
which we held that "[s]ex offender certification is part
of the judgment of conviction, and the proper occasion for
defendant to have challenged that certification was on an
appeal from the judgment." In Miguel, we found
that the defendant's claim that his underlying New York
felony was not an offense requiring sex offender registration
presented a question about the propriety of certification,
that the SORA court's treatment of the issue was
therefore an "essentially academic exercise, " and
that the issue was unreviewable on appeal. The same is true
of defendant's argument, which amounts to a claim -
unpreserved at trial and not advanced on direct appeal - that
the trial court erred in failing to relieve him of
the obligation to register under the standard set forth in
Correction Law § 168-a(2)(e).
that his motion was properly addressed to the SORA court,
defendant relies chiefly on People v Simmons (129
A.D.3d 520 [1st Dept 2015], lv denied 26 N.Y.3d 903');">26 N.Y.3d 903
) and People v Liden (19 N.Y.3d 271');">19 N.Y.3d 271 ).
Neither argument is persuasive. In Simmons we
addressed and rejected an argument, also raised before and
rejected by the SORA court, that the defendant should be
exempted from sex offender registration pursuant to
Correction Law § 168-a(2)(e). However, in
Simmons neither the parties nor this Court addressed
the question of whether the defendant's appeal of his sex
offender certification was properly before us. Accordingly,
Simmons lacks precedential value as to this issue
(see People v Miller, 145 A.D.3d 593, 594 [1st Dept
2016], lv denied 29 N.Y.3d 950');">29 N.Y.3d 950 ).
reliance on Liden is also misplaced. Recognizing a
narrow exception to the general rule that rulings of
administrative agencies may only be reviewed in article 78
proceedings, the Liden court held that a defendant
could challenge, at his SORA hearing, a determination of the
Board of Examiners of Sex Offenders that he was required to
register based on an out-of-state conviction, and that the
Appellate Division could review the SORA court's ruling.
Liden 's particular facts are distinguishable
and it does not stand for a broad proposition that a SORA
court has the authority to decide any and all questions of
registrability. Its reasoning does not extend to this case,
in which the statute prescribes that the trial court, not the
Board, determines whether "registration would be unduly
harsh and inappropriate, " and that it do so in a manner
that permits certification to occur "upon
conviction" if the motion is denied.
event, regardless of the issue of reviewability, requiring
this defendant to register as a sex offender would not be
"unduly harsh and inappropriate." As in
Simmons, the "circumstances of the surveillance
were repulsive, and they raise concerns about defendant's