Opinion
CV–22–2277
11-16-2023
In the Matter of Michael N. KELSEY, Appellant, v. Kathy HOCHUL, as Governor of the State of New York, Respondent.
Michael N. Kelsey, Salt Point, appellant pro se. Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for respondent.
Michael N. Kelsey, Salt Point, appellant pro se.
Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Ceresia, McShan and Powers, JJ.
MEMORANDUM AND ORDER
Ceresia, J. Appeal from a judgment of the Supreme Court (Peter A. Lynch, J.), entered September 2, 2022 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondent's motion to dismiss the petition/complaint. Pursuant to the Sex Offender Registration Act (see Correction Law art 6–c [hereinafter SORA]), the Division of Criminal Justice Services maintains a registry of individuals convicted of sex offenses and places upon these individuals the obligation to register with the division while setting forth that the failure to do so is a felony offense (see Correction Law §§ 168–b, 168–f, 168–t ). Petitioner, a registered sex offender, commenced this combined proceeding alleging, among other things, that the registration requirement and attendant penalty provision set forth therein are facially unconstitutional as violative of the Fourth and Thirteenth Amendments to the U.S. Constitution. After petitioner filed an amended petition, respondent moved to dismiss. Supreme Court granted the motion, finding, as is relevant here, that petitioner's constitutional challenges lacked merit. Petitioner appeals.
"Legislative enactments carry an exceedingly strong presumption of constitutionality, and while this presumption is rebuttable, one undertaking that task carries a heavy burden of demonstrating unconstitutionality beyond a reasonable doubt" ( Matter of Walt Disney Co. & Consol. Subsidiaries v. Tax Appeals Trib. of the State of N.Y., 210 A.D.3d 86, 92, 176 N.Y.S.3d 356 [3d Dept. 2022] [internal quotation marks, brackets and citations omitted]; see Matter of Schulz v. State of New York, 216 A.D.3d 21, 25, 189 N.Y.S.3d 765 [3d Dept. 2023]appeal dismissed 40 N.Y.3d 1004, 2023 WL 6885672 [2023] ). As facial challenges to statutes are generally disfavored, petitioner, as the party mounting such challenge, "bear[s] the substantial burden of demonstrating that in any degree and in every conceivable application, the law suffers wholesale constitutional impairment" ( White v. Cuomo, 38 N.Y.3d 209, 216, 172 N.Y.S.3d 373, 192 N.E.3d 300 [2022] [internal quotation marks and citations omitted]; see People v. Stuart, 100 N.Y.2d 412, 422, 765 N.Y.S.2d 1, 797 N.E.2d 28 [2003] ; Matarazzo v. CHARLEE Family Care, Inc., 218 A.D.3d 941, 942–943, 192 N.Y.S.3d 755 [3d Dept. 2023] ).
"[T]he 4th Amendment of the United States Constitution ... protect[s] individuals from unreasonable government intrusions into their legitimate expectations of privacy" ( Matter of Owner Operator Ind. Drivers Assn., Inc. v. New York State Dept. of Transp., 40 N.Y.3d 55, 62, 193 N.Y.S.3d 714, 214 N.E.3d 482 [2023] [internal quotation marks and citation omitted]). Even assuming that SORA exposes individuals to a search and seizure, when taking into account the strong societal interest in protecting the public from those who have been convicted of sex offenses and the "reduced expectation of privacy" of persons convicted of such crimes (L 1995, ch 192, § 1 ; see also People v. Knox, 12 N.Y.3d 60, 67, 875 N.Y.S.2d 828, 903 N.E.2d 1149 [2009], cert denied 558 U.S. 1011, 130 S.Ct. 552, 175 L.Ed.2d 382 [2009] ; People v. Szwalla, 61 A.D.3d 1289, 1290, 877 N.Y.S.2d 757 [3d Dept. 2009] ), this is not a governmental intrusion that society deems unreasonable (see Jones v. County of Suffolk, 936 F.3d 108, 118–119 [2d Cir. 2019] ; Doe v. Cuomo, 755 F.3d 105, 115 [2d Cir. 2014] ; cf. People v. Slivienski, 204 A.D.3d 1228, 1237, 166 N.Y.S.3d [3d Dept. 2022], lv denied 38 N.Y.3d 1136, 172 N.Y.S.3d 854, 193 N.E.3d 519 [2022] ).
Petitioner's argument that SORA's registration obligation amounts to involuntary servitude is similarly without merit as this is plainly not a "form[ ] of compulsory labor akin to African slavery" as was intended to be prohibited by the Thirteenth Amendment ( United States v. Kozminski, 487 U.S. 931, 942, 108 S.Ct. 2751, 101 L.Ed.2d 788 [1988] [internal quotation marks and citation omitted]).
Egan Jr., J.P., Clark, McShan and Powers, JJ., concur.
ORDERED that the judgment is affirmed, without costs.