New York Law Review

Tag: People v. Moss

  • People v. Moss, 2025 NY Slip Op 01673: Effect of Prior Unchallenged Conviction on Sex Offender Registration Act (SORA) Risk Level

    People v. Moss, 2025 NY Slip Op 01673 (2025)

    The Sex Offender Registration Act (SORA) guidelines’ override for a prior felony sex crime conviction applies if the conviction has not been vacated or overturned, even if a subsequent court finds the conviction constitutionally infirm for sentencing purposes.

    Summary

    The New York Court of Appeals affirmed the application of a SORA risk level override, mandating a presumptive risk level three classification for Dwight Moss because he had a prior felony conviction for a sex crime. Although a later court determined that Moss’s 2006 guilty plea was likely coerced and could not be used as a sentencing predicate in a subsequent case, the Court of Appeals held that the prior conviction remained valid for SORA purposes because it had not been directly vacated or overturned. The court emphasized that the SORA guidelines should be applied when a prior felony sex crime conviction exists on a defendant’s record and has not been successfully challenged through the proper legal channels.

    Facts

    Dwight Moss had a history of sex crime convictions, including a 2006 felony conviction for course of sexual conduct against a child. In 2016, he was convicted of additional sex crimes. During sentencing for the 2016 conviction, Moss argued that the 2006 conviction was unconstitutionally obtained due to coercion. The sentencing court agreed and determined the 2006 conviction could not be used as a predicate offense for sentencing in that case. However, the 2006 conviction was never vacated. Following Moss’s release from prison, the Board of Examiners of Sex Offenders (Board) prepared a risk assessment, applying the SORA guidelines. The Board applied the override for prior felony sex crime convictions, resulting in a presumptive risk level three classification. Moss contested this determination, arguing that the 2006 conviction should not trigger the override due to the finding of coercion in his later sentencing. The SORA court upheld the override because the conviction had not been vacated or overturned.

    Procedural History

    Moss was convicted of multiple sex offenses spanning several years, including a 2006 conviction for a felony sex crime. In 2016, he was convicted of additional sex crimes, and during sentencing, argued that the 2006 conviction was unconstitutionally obtained. The sentencing court agreed and determined the 2006 conviction could not be used as a predicate offense for sentencing in that case. A SORA hearing followed, with the Board applying the SORA guidelines and the override for prior felony sex crime convictions, resulting in a presumptive risk level three classification. The SORA court upheld the override, and the Appellate Division affirmed. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the SORA guidelines’ override for a prior felony sex crime conviction applies where a subsequent court determines the conviction was likely coerced and cannot be used as a sentencing predicate, but the conviction itself has not been vacated or overturned?

    Holding

    1. Yes, because the SORA guidelines’ override for a prior felony sex crime conviction applies when the conviction remains on the defendant’s record, even if a court later determines it was unconstitutionally obtained for the purposes of sentencing, as long as it has not been vacated or overturned.

    Court’s Reasoning

    The Court of Appeals focused on the purpose of SORA: to protect the public from sex offenders. The court deferred to the Board’s interpretation of the guidelines, recognizing its expertise. The court distinguished between a conviction being deemed unconstitutional in a sentencing context and a conviction being directly challenged and vacated or overturned. The court reasoned that while a subsequent court found the 2006 guilty plea constitutionally infirm and thus unusable for sentencing, Moss had never taken steps to directly challenge the 2006 conviction, therefore it remained on his record. The court emphasized the higher evidentiary burden Moss would have faced had he directly challenged the constitutionality of the 2006 conviction. Since Moss failed to pursue the proper procedural avenues to vacate the conviction, the court found no basis to depart from the guideline’s clear language mandating the override.

    Practical Implications

    This case highlights the critical importance of challenging a prior conviction directly and using the proper legal channels. Legal practitioners should advise clients to challenge all prior convictions directly, rather than collaterally, if such challenges are available and could affect a future SORA determination. When representing a client in a SORA proceeding, counsel must carefully examine the client’s prior convictions and determine whether any challenges have been made. Even if a conviction has been deemed constitutionally infirm in a subsequent case, it may still trigger SORA consequences if it has not been vacated. This ruling also underscores the need for a defendant seeking to avoid the SORA override to meet the higher evidentiary burden required to vacate or overturn a conviction. The decision also underscores the importance of the Board of Examiners of Sex Offenders’ interpretation of the guidelines and their expertise in applying them.

  • People v. Echevarria, Moss, and Johnson, 21 N.Y.3d 158 (2013): Public Trial Rights and Undercover Officer Testimony

    21 N.Y.3d 158 (2013)

    A trial court may close the courtroom to the public during the testimony of undercover officers if the prosecution demonstrates an overriding interest, such as officer safety, that is likely to be prejudiced by an open trial, and the closure is no broader than necessary, and the court considers reasonable alternatives to closure; however, the court need not explicitly state on the record that it considered alternatives.

    Summary

    These consolidated appeals concern courtroom closures during undercover officers’ testimony in buy-and-bust cases. The Court of Appeals held that limited closures comported with Sixth Amendment public trial principles because the officers demonstrated a specific link between their safety concerns and open-court testimony. The Court clarified that while trial courts must consider alternatives to closure, they are not always required to explicitly state this consideration on the record. One case was reversed due to an erroneous jury charge on the agency defense.

    Facts

    In Echevarria, the defendant sold crack cocaine to an undercover officer. The officer testified he remained active in the area, had pending cases, and had been threatened. In Moss, the defendant sold crack cocaine to an undercover officer who continued to work in the area after the arrest. The officer had been threatened and searched by suspects. In Johnson, the defendant sold crack cocaine to an undercover officer who remained active in the area. This officer had been threatened and physically attacked.

    Procedural History

    In all three cases, the trial courts held Hinton hearings to determine if the courtroom should be closed during the undercover officers’ testimony. All three courts ordered closure during the officers’ testimony, sometimes with exceptions for family. The Appellate Division affirmed the convictions in all cases. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the People demonstrated a sufficient likelihood of prejudice to an overriding interest to justify closing the courtroom during the testimony of the undercover officers.
    2. Whether the trial judge in each case failed to comply with the requirement that courts consider reasonable alternatives to closure.

    Holding

    1. Yes, because the officers demonstrated a specific link between their safety concerns and open-court testimony in the particular buy-and-bust case.
    2. No, because the record made no mention of alternatives but was otherwise sufficient to establish the need to close the particular proceeding, therefore it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest.

    Court’s Reasoning

    The Court relied on Waller v. Georgia, which requires the party seeking closure to advance an overriding interest likely to be prejudiced, the closure must be no broader than necessary, the trial court must consider reasonable alternatives, and it must make adequate findings to support the closure. The Court found the safety of law enforcement officers constitutes an overriding interest. However, there must be a specific link between the officer’s safety concerns and open-court testimony in the particular case.

    In Moss and Johnson, the officers demonstrated continued activity in the area of arrest, open cases, and prior threats, establishing this link.

    The Court emphasized that while trial courts must consider alternatives to closure, they need not always explicitly discuss them on the record. The Court reaffirmed its holding in People v. Ramos. Quoting Ramos, the court stated that “it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest” (Ramos, 90 NY2d at 503-504 [emphasis added]). The Court distinguished Presley v. Georgia, noting that in Presley, the record made clear that the trial judge’s exclusion of the public was unwarranted, and the space constraints could have been easily remedied using less intrusive measures.