Opinion
5306 Ind. 4117/13
01-02-2018
The PEOPLE of the State of New York, Respondent, v. Luis LEMA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Anokhi A. Shah of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Kelly L. Smith of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Anokhi A. Shah of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Kelly L. Smith of counsel), for respondent.
Friedman, J.P., Gische, Webber, Singh, JJ.
Order, Supreme Court, New York County (Ronald A. Zweibel,
J.), entered on or about May 13, 2016, which adjudicated defendant a level one sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
The question of whether defendant should be required, as a matter of the court's discretion, to register as a sex offender as the result of his conviction of unlawful surveillance (for making cell phone videos under women's dresses on the subway) is not properly before us on this appeal. Because the order adjudicating defendant a sex offender is appealable, we need not dismiss the appeal. However, the issue defendant wishes to raise is not reviewable.
Defendant challenges the SORA hearing court's denial of his motion made pursuant to Correction Law § 168–a(2)(e), which provides, uniquely, that a conviction of unlawful surveillance in the second degree under Penal Law § 250.45(2), (3), or (4) constitutes a sex offense requiring registration, except 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." The People argue that such a motion can only properly be brought before the trial court, before its determination whether a defendant is to be certified as a sex offender, and that even if a SORA court is authorized to rule on such a motion, defendant's motion was properly denied.
We agree with the People that the statute does not give a SORA court the power to determine a motion under Correction Law § 168–a(2)(e). While we find it significant that the provision assigns the duty of ruling on the motion to "the trial court"—notably the only time that phrase is used in SORA's numerous sections—we do not consider the use of the phrase to be a sufficient basis for our interpretation, because it is arguably malleable enough not to be limited to the court that actually presided over the defendant's trial. However, Correction Law § 168–d(1)(a), describing the "duties of the court," provides a more definite indication of statutory intent, by way of language that clearly contemplates that certification as a sex offender occurs "upon conviction" and after consideration of any motion pursuant to Correction Law § 168–a(2)(e). Nothing else in the statutory scheme contradicts this understanding.
This reading of section § 168–a(2)(e) is consistent with our decision in People v. Miguel, 140 A.D.3d 497, 497, 32 N.Y.S.3d 485 (1st Dept. 2016), lv denied 28 N.Y.3d 908, 2016 WL 6827098 (2016), in which we held that "[s]ex offender certification is part of the judgment of conviction, and the proper occasion for defendant to have challenged that certification was on an appeal from the judgment." In Miguel, we found that the defendant's claim that his underlying New York felony was not an offense requiring sex offender registration presented a question about the propriety of certification, that the SORA court's treatment of the issue was therefore an "essentially academic exercise," and that the issue was unreviewable on appeal. The same is true of defendant's argument, which amounts to a claim—unpreserved at trial and not advanced on direct appeal—that the trial court erred in failing to relieve him of the obligation to register under the standard set forth in Correction Law § 168–a(2)(e).
Contending that his motion was properly addressed to the SORA court, defendant relies chiefly on People v. Simmons, 129 A.D.3d 520, 10 N.Y.S.3d 426 (1st Dept. 2015), lv denied 26 N.Y.3d 903, 2015 WL 5154920 (2015) and People v. Liden, 19 N.Y.3d 271, 946 N.Y.S.2d 533, 969 N.E.2d 751 (2012). Neither argument is persuasive. In Simmons we addressed and rejected an argument, also raised before and rejected by the SORA court, that the defendant should be exempted from sex offender registration pursuant to Correction Law § 168–a(2)(e). However, in Simmons neither the parties nor this Court addressed the question of whether the defendant's appeal of his sex offender certification was properly before us. Accordingly, Simmons lacks precedential value as to this issue (see People v. Miller, 145 A.D.3d 593, 594, 45 N.Y.S.3d 1 [1st Dept. 2016], lv denied 29 N.Y.3d 950, 54 N.Y.S.3d 381, 76 N.E.3d 1084 [2017] ).
Defendant's reliance on Liden is also misplaced. Recognizing a narrow exception to the general rule that rulings of administrative agencies may only be reviewed in article 78 proceedings, the Liden court held that a defendant could challenge, at his SORA hearing, a determination of the Board of Examiners of Sex Offenders that he was required to register based on an out-of-state conviction, and that the Appellate Division could review the SORA court's ruling. Liden 's particular facts are distinguishable and it does not stand for a broad proposition that a SORA court has the authority to decide any and all questions of registrability. Its reasoning does not extend to this case, in which the statute prescribes that the trial court, not the Board, determines whether "registration would be unduly harsh and inappropriate," and that it do so in a manner that permits certification to occur "upon conviction" if the motion is denied.
In any event, regardless of the issue of reviewability, requiring this defendant to register as a sex offender would not be "unduly harsh and inappropriate." As in Simmons, the "circumstances of the surveillance were repulsive, and they raise concerns about defendant's character and potential for recidivism" ( Simmons, 129 A.D.3d at 521, 10 N.Y.S.3d 426 ).