People v. Windham, 10 N.Y.3d 801 (2008)
A challenge to a Sex Offender Registration Act (SORA) risk-level determination must be raised at the hearing court to be preserved for appellate review, as it is a collateral consequence of a conviction, not part of the sentence itself.
Summary
Defendant Windham, convicted of robbery and sexual abuse, was designated a level three sex offender under SORA in 2005. On appeal, he argued for the first time that he was not subject to SORA because he completed the sex offense portion of his sentence before SORA’s effective date. The Court of Appeals affirmed the lower court’s decision, holding that Windham failed to preserve his claim by not raising it at the initial SORA hearing. The Court clarified that SORA determinations are collateral consequences, distinct from the sentence itself, and therefore require timely objection at the hearing level.
Facts
Joseph Windham was sentenced in 1991 for first-degree robbery and first-degree sexual abuse, receiving concurrent prison terms. He was paroled in 1996 but reincarcerated for a parole violation in 1997. In 2005, at a SORA risk level reassessment hearing, the People successfully argued that Windham should be designated a level three (high risk) sex offender.
Procedural History
The Supreme Court designated Windham a level three sex offender. Windham appealed to the Appellate Division, arguing he was not subject to SORA. The Appellate Division affirmed the Supreme Court’s decision, citing both a failure to preserve the issue and a lack of merit. Windham then appealed to the New York Court of Appeals.
Issue(s)
Whether a defendant must raise the issue of their SORA eligibility at the initial hearing to preserve that issue for appellate review, or whether a challenge to SORA eligibility falls under the exception to the preservation rule for unauthorized or illegal sentences.
Holding
No, because a SORA risk-level determination is a collateral consequence of a conviction, not part of the defendant’s sentence, and therefore must be contested at the hearing court to be preserved for appellate review.
Court’s Reasoning
The Court of Appeals grounded its decision on the principle of preservation of issues for appellate review. The Court distinguished SORA determinations from sentencing, emphasizing that SORA is a collateral consequence designed for public protection, not punishment. The court stated that “a SORA risk-level determination is not part of a defendant’s sentence.” The Court reasoned that because Windham did not contest his SORA eligibility at the Supreme Court hearing, he could not raise the issue for the first time on appeal. By failing to object initially, he waived his right to appellate review of the SORA eligibility question. The Court cited People v. Stevens, 91 NY2d 270, 277 (1998) to support the position that SORA determinations are separate from sentencing. The court also noted SORA’s purpose, quoting Doe v. Pataki, 120 F3d 1263 (2d Cir 1997), stating SORA is designed “not to punish, but rather to protect the public.”