People v. Buss, 12 N.Y.3d 556 (2009)
For purposes of the Sex Offender Registration Act (SORA), a prisoner serving multiple sentences, whether concurrent or consecutive, is subject to all sentences that make up the merged or aggregate sentence they are serving at the time SORA becomes effective.
Summary
Robert Buss, convicted of sexual abuse in 1983 and attempted murder in 1987, challenged his designation as a level three sex offender under SORA. He argued that SORA didn’t apply because his sentence for the 1983 sexual abuse conviction was due to expire before SORA’s effective date in 1996. The New York Court of Appeals held that because Buss was still serving an aggregate sentence that included the 1983 conviction when SORA became effective, he was subject to SORA registration. The Court reasoned that Penal Law § 70.30 treats multiple sentences as a single, ongoing sentence for the duration of imprisonment, supporting the application of SORA in this context.
Facts
In 1983, Buss pleaded guilty to sexual abuse and assault. In 1987, while on parole, he committed another violent crime, pleading guilty to attempted murder. Upon his 2002 release, the Board of Examiners of Sex Offenders determined Buss was required to register under SORA due to his 1983 conviction. The Board initially calculated a risk assessment score that presumptively placed him at level two, but recommended an upward departure to level three due to the brutality of the 1987 assault.
Procedural History
County Court designated Buss a level three sex offender, agreeing with the Board’s recommendation based on override factors. The Appellate Division affirmed, concluding Buss was a presumptive level three offender due to the serious physical injury inflicted on his first victim. The Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.
Issue(s)
Whether SORA applies to an offender whose sentence for a sex crime conviction would have expired before SORA’s effective date, but who was still serving an aggregate sentence, including that sex crime, due to a subsequent conviction and consecutive sentencing.
Holding
Yes, because for SORA purposes, a prisoner serving multiple sentences is subject to all the sentences, whether concurrent or consecutive, that make up the merged or aggregate sentence they are serving. Therefore, Buss was still serving a sentence for his 1983 sex crime when SORA became effective.
Court’s Reasoning
The Court relied on Penal Law § 70.30, which governs the calculation of terms of imprisonment when a defendant is serving multiple sentences. This statute merges concurrent sentences and adds consecutive sentences to form aggregate minimum and maximum terms. The Court reasoned that underlying Penal Law § 70.30 is the concept that concurrent and consecutive sentences effectively create a single, indeterminate sentence. The court stated, “[W]e find it reasonable to apply section 70.30 to the question of whether a prisoner who has been given multiple sentences is subject to all his sentences for the duration of his term of imprisonment.”
The Court emphasized the purpose of SORA, stating that one of its primary goals is to “protect the public from the danger of recidivism posed by sex offenders” (quoting People v Stevens, 91 NY2d 270, 275 [1998]). The Court found that this goal is best served by recognizing that a person returned to prison while on parole for a sex offense remains subject to the sex offense sentence for the duration of the aggregate sentence. Common sense suggests that a defendant’s conduct while on parole is a reliable indicator of the risk he poses to society.