Opinion
No. 16146 Ind No. 3327/10 Case No. 2021-02374
06-16-2022
The People of the State of New York, Respondent, v. J.F., Defendant-Appellant.
Law Office of A. Adam Mehrfar, New York (Arman Adam Mehrfar of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Malancha Chanda of counsel), for respondent.
Law Office of A. Adam Mehrfar, New York (Arman Adam Mehrfar of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Malancha Chanda of counsel), for respondent.
Before: Renwick, J.P., Manzanet-Daniels, Kern, Mazzarelli, Shulman, JJ.
Order, Supreme Court, New York County (Miriam R. Best, J.), entered on or about May 21, 2021, which denied defendant's Correction Law § 168-o(2) petition to modify his sex offender classification, unanimously affirmed, without costs.
The court correctly concluded that defendant was ineligible for modification of his sex offender status. Defendant was adjudicated a level one offender on his conviction of unlawful surveillance in the second degree. There is no risk level designated in the statute that is lower than level one. Thus, defendant's petition pursuant to Correction Law § 168-o (2) is really an application to be relieved of any further duty to register, as a purportedly nondangerous offender. However, there is no specific provision in Correction Law § 168-o which permits a level one sex offender to petition to be relieved of any further duty to register (P eople v Ayala, 179 A.D.3d 1465, 1465 [4th Dept 2020], lv denied 35 N.Y.3d 908 [2020]; see also People v Wyatt, 89 A.D.3d 112, 125 [2d Dept 2011], lv denied 18 N.Y.3d 803 [2012]; Matter of Attorney Gen. of the State of N.Y. v Simon, 27 Misc.3d 546, 548 [Sup Ct, Dutchess County 2010]). We recognize that Correction Law § 168-o(1) permits level two sex offenders to petition for relief from their lifetime duty to register. However, this petition can only be made after 30 years of continuous registration (id.). In contrast, for a person who is classified as level one, there is no provision for complete relief from the registration request.
Defendant contends that despite being only a level one offender, he is eligible for relief from registration because of Correction Law § 168-a(2)(e), which uniquely provides the trial court with the discretion to determine that a conviction of unlawful surveillance in the second degree does not require sex offender registration. However, that provision applies at the time of sentencing where, "upon motion by the defendant, the trial court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that registration would be unduly harsh and inappropriate" (People v Lema, 157 A.D.3d 406, 407 [1st Dept 2018], lv denied 31 N.Y.3d 901 [2018]; see People v Gonzalez, 157 A.D.3d 409 [1st Dept 2018], lv denied 31 N.Y.3d 901 [2018]). Certification as a sex offender occurs upon conviction, and after consideration of any motion pursuant to Correction Law § 168-a(2)(e). Defendant was certified as a sex offender in 2010 and did not appeal from his judgment of conviction. Accordingly, he is foreclosed from raising this argument now. More pertinently, this provision of the Correction Law does not apply to modification petitions, which are governed solely by Correction Law § 168-o, and which do not provide the relief defendant seeks.