Opinion
05-07-2015
In the Matter of Daniel KASCKAROW, Appellant, v. BOARD OF EXAMINERS OF SEX OFFENDERS OF STATE OF NEW YORK, Respondent.
Lynn W.L. Fahey, Appellate Advocates, New York City (Anna Pervukhin of counsel), for appellant. Eric T. Schneiderman, Attorney General, New York City (Claude S. Platton, Barbara D. Underwood and Cecelia C. Chang of counsel), for respondent.
Lynn W.L. Fahey, Appellate Advocates, New York City (Anna Pervukhin of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York City (Claude S. Platton, Barbara D. Underwood and Cecelia C. Chang of counsel), for respondent.
OPINION OF THE COURT
MEMORANDUM .
The order of the Appellate Division should be affirmed, without costs.
In 1998, petitioner Daniel Kasckarow was charged in Florida with the felony offense of indecent assault for committing an act of sexual battery on a child under the age of 16 (see Fla. Stat. §§ 794.011 [1][h]; former 800.04 [3] ). Petitioner, who contends he was 18 years old at the time of the offense and engaged in consensual sex with a 15–year–old high school classmate, entered a plea of nolo contendere to the charge. The Florida court withheld adjudication, entering an order of supervision and placing petitioner on “sex offender probation” for four years. In 2001, he was granted early termination, but was still required to register under Florida's sex offender registration laws for the rest of his life (see Fla. Stat. § 943.0435 [1][a] [1][a][I]; [11] ).
The record does not reveal the exact age of the victim or the circumstances of the sexual encounter in Florida.
Petitioner subsequently notified New York authorities of his status as a sex offender in Florida, and of his intent to move to New York (Correction Law § 168–k [1 ] ). The Board of Examiners of Sex Offenders determined that petitioner was required to register in New York under the Sex Offender Registration Act (SORA) because he had been convicted of a sex offense within the meaning of Correction Law § 168–a. As relevant here, SORA defines a “sex offender” as “any person who is convicted” of a “sex offense” (Correction Law § 168–a [1 ], [2] ), and a “sex offense” includes “a conviction of ... a felony in any other jurisdiction for which
the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred” (id. § 168–a [2 ][d][ii] ).
Petitioner brought this CPLR article 78 proceeding to challenge the Board's determination. He argued that the disposition of his Florida felony did not constitute a “conviction” within the meaning of SORA for two reasons: he pleaded nolo contendere and the Florida court withheld adjudication. Supreme Court dismissed the petition, holding that “a nolo contendere plea is generally deemed a conviction” and “nothing unique about SORA ... suggests that a nolo contendere plea should be treated differently for purposes of SORA registration” (33 Misc.3d 1028, 1032–1033, 936 N.Y.S.2d 498 [Sup.Ct., Kings County 2011] ). Further, although SORA does not define “conviction,” CPL 1.20(13) states that “conviction includes the entry of a plea of guilty to an accusatory instrument (or counts thereof)” (id. at 1031, 936 N.Y.S.2d 498 [internal quotation marks omitted] ). Because petitioner's guilty plea was a conviction, “the fact that adjudication was withheld ha[d] no bearing on whether the Florida crime constitute[d] a conviction for purposes of SORA” (id. at 1033, 936 N.Y.S.2d 498 ). The Appellate Division affirmed (106 A.D.3d 915, 964 N.Y.S.2d 650 [2d Dept.2013] ), and we granted petitioner leave to appeal (22 N.Y.3d 851, 2013 WL 5567922 [2013] ). We now affirm.
Petitioner again contends that because nolo contendere pleas are not recognized in New York, they cannot serve as the basis for a conviction within the meaning of SORA. We held in People v. Daiboch, 265 N.Y. 125, 191 N.E. 859 (1934), however, that the entry of a nolo contendere plea in another jurisdiction, followed by a judgment placing the defendant on probation for two years, was a prior conviction for purposes of sentencing the defendant as a second offender. Although Daiboch did not involve SORA, we confronted the same issue presented by this case: whether a defendant's out-of-state nolo contendere plea for which a non-incarceratory sentence was imposed qualifies as a conviction in New York. Nolo contendere pleas, like Alford pleas, are “no different from other guilty pleas” (Matter of Silmon v. Travis, 95 N.Y.2d 470, 475, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000] [recognizing that an Alford plea may generally be used for the same purposes as any other conviction] ). And because New York defines a conviction to include the entry of a guilty plea, regardless of the subsequent sentence or judgment, the ultimate disposition of petitioner's Florida conviction is irrelevant. New York distinguishes between a conviction and a “judgment of conviction,” the latter of which includes “a conviction and the sentence imposed thereon” (CPL 1.20 [15] ). As we have previously observed, the legislature intended the Criminal Procedure Law to provide the “definitive meaning” of the term “conviction” for other criminal statutes, and it meant what it said when it defined “conviction” separately from a judgment or sentence (People v. Montilla, 10 N.Y.3d 663, 668, 862 N.Y.S.2d 11, 891 N.E.2d 1175 [2008] ).
We have reviewed petitioner's remaining arguments and consider them to be without merit.
Chief Judge LIPPMAN and Judges READ, PIGOTT, RIVERA, ABDUS–SALAAM, STEIN and FAHEY concur.
Order affirmed, without costs, in a memorandum.