New York Law Review

Tag: SORA

  • People v. Kearns, 720 N.E.2d 817 (N.Y. 1999): Appealability of Sex Offender Risk Level Determinations

    People v. Kearns, 720 N.E.2d 817 (N.Y. 1999)

    A risk level determination under New York’s Sex Offender Registration Act (SORA), made contemporaneously with a criminal judgment of conviction, is not independently appealable from that criminal judgment.

    Summary

    Defendant pleaded guilty to sexual abuse. Following the plea, the trial court, over defense counsel’s objection, designated the defendant a sexually violent predator under SORA. The Appellate Division affirmed the conviction but stated the SORA determination was not reviewable. The New York Court of Appeals affirmed, holding that a SORA risk level determination, even when made alongside the criminal judgment, is not appealable as part of that judgment. The Court reasoned that SORA’s requirements are not an integral part of the sentence and lack explicit statutory authorization for appeal within the criminal proceeding.

    Facts

    Defendant was charged with multiple counts of rape and sexual abuse for acts committed in August 1995. He pleaded guilty to one count of first-degree sexual abuse in satisfaction of the indictment. As part of the plea, defendant executed a written waiver of his right to appeal. Following the plea, but before sentencing, the Supreme Court conducted a SORA hearing to determine the defendant’s risk level.

    Procedural History

    The Supreme Court determined the defendant to be a sexually violent predator and imposed the negotiated sentence. The Appellate Division affirmed the judgment of conviction and sentence, stating the SORA assessment was not reviewable. Leave to appeal was granted by a judge of the Court of Appeals. The Court of Appeals affirmed, holding the risk level determination not independently appealable from the criminal judgment.

    Issue(s)

    Whether a risk level determination made under SORA contemporaneously with a criminal judgment of conviction is independently appealable as part of that criminal judgment.

    Holding

    No, because the risk level determination is not an integral part of the sentence and lacks explicit statutory authorization for appeal within the criminal proceeding.

    Court’s Reasoning

    The Court of Appeals relied on its prior decision in People v. Stevens, 91 N.Y.2d 270 (1997), which held that SORA’s registration and notification requirements were not a “traditional, technical or integral part of a sentence that somehow relates back to or becomes incorporated into the antecedent judgment of conviction.” The Court distinguished People v. Hernandez, 93 N.Y.2d 261 (1999), which involved a certification requirement that was explicitly made part of the order of commitment and certificate of conviction. The Court emphasized that the risk level determination lacks the same explicit statutory integration into the judgment. The Court stated: “Here, the fact that the evaluation was made contemporaneously with the criminal judgment does not change the analysis, the governing principle, or the essential nature of the risk level determination.” The Court also noted that the Legislature amended SORA to authorize civil appeals of risk level determinations, but only for determinations made on or after January 1, 2000. Allowing appeals in cases like Kearns’ would create dual criminal and civil tracks of appeal potentially leading to conflicting results, which the Court deemed undesirable. The court declined to “promulgate a nonenacted avenue of appeal for this case and its limited cadre of cases”.

  • People v. Hernandez, 98 N.Y.2d 275 (2002): Appealability of Sex Offender Certification

    People v. Hernandez, 98 N.Y.2d 275 (2002)

    A defendant’s certification as a sex offender under New York’s Sex Offender Registration Act (SORA) is appealable as part of the judgment of conviction, allowing appellate review of potential errors in the certification process.

    Summary

    Hernandez was convicted of attempted rape and sexual abuse. He challenged the denial of a for-cause jury challenge, the jury instruction on “attempt,” and the appealability of his sex offender certification under SORA. The New York Court of Appeals held that the SORA certification is appealable as part of the judgment of conviction. The Court reasoned that since the certification is mandated by statute upon conviction and included in the order of commitment, it is an integral part of the final adjudication and thus subject to appellate review. The case was remitted to the Appellate Division for consideration of Hernandez’s ex post facto challenge to the SORA certification.

    Facts

    Hernandez accosted a woman, stated his intent to “make love” to her, and threatened her. He choked her when she cried out and dragged her towards a basement, touching her vaginal area through her clothing. The victim escaped and police found Hernandez hiding nearby. He was identified and indicted for attempted rape and sexual abuse.

    Procedural History

    The trial court denied Hernandez’s challenge for cause of a potential juror. He was convicted after a jury trial. At sentencing, the court certified Hernandez as a sex offender under SORA, which Hernandez challenged. The Appellate Division affirmed the conviction but held the SORA certification was not reviewable on direct appeal, citing People v. Stevens. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a defendant’s certification as a sex offender under Correction Law article 6-C (SORA) is appealable as part of a direct appeal from the judgment of conviction.

    Holding

    Yes, because the certification is a mandatory part of the court’s final adjudication upon conviction and is included in the order of commitment, making it an integral part of the judgment and therefore appealable.

    Court’s Reasoning

    The Court of Appeals reasoned that the SORA certification, mandated by Correction Law § 168-d(1) upon conviction, becomes part of the order of commitment, which is directly linked to the judgment. The Court analogized the SORA certification to the imposition of a mandatory surcharge, which is also levied at sentencing and is reviewable on appeal. The Court rejected the argument that SORA certification is merely a “nonsentence consequence,” stating that this would unfairly deprive defendants of appellate review of potential errors in the certification process. The Court distinguished its prior holding in People v. Stevens, where it held that risk level determinations are not appealable as part of the judgment of conviction. In Stevens, the risk level determination occurred postsentence, whereas here, the certification occurs contemporaneously with the conviction and sentence. The court acknowledged potential inconsistencies that might arise if risk-level determinations are made simultaneously with certification but emphasized the need for legislative clarification. The Court stated, “Unlike the belated risk level determination in Stevens, defendant’s SORA “certification” here was actually and temporally part of the judgment of conviction.” Because the certification is a part of the judgment, it is appealable. The court stated that, “Even assuming that SORA certifications were deemed not a part of the sentence, we are satisfied that they are certainly part of the judgment.”