Opinion
Ind. No. 2889/2006
09-28-2023
The PEOPLE of the State of New York v. Albert MICHAEL, also known as Michael de L'Arbe, Defendant.
Eric Gonzalez, District Attorney (Kevin O'Donnell of counsel), for the People. Robert C. Gottlieb for defendant.
Eric Gonzalez, District Attorney (Kevin O'Donnell of counsel), for the People.
Robert C. Gottlieb for defendant.
Guy J. Mangano, Jr., J. Defendant, who has previously been adjudicated level one sex offender pursuant to New York's Sex Offender Registration Act (Correction Law Article 6-C, § 168, herein "SORA"), based on his 2008 conviction for Disseminating Indecent Materials to Minors in the First Degree ( Penal Law § 235.22 ), brings a "Petition for an Order to Terminate Sex Offender Registration." (Emphasis added.)
The People oppose.
ANALYSIS
Defendant bases his motion on Correction Law § 168-o(2), which provides, as relevant here: "Any sex offender required to register or verify pursuant to this article may petition the sentencing court or the court which made the determination regarding the level of notification for an order modifying the level of notification." (Emphasis added.)
In support of his Petition, defendant relies heavily on dicta from Woe v. Spitzer , 571 F.Supp.2d 382 (E.D.N.Y. 2008), in which the Eastern District ruminated:
SORA provides for modification of findings of the sentencing court. Level two sex offenders, who are now subject to
lifetime registration (and have not been designated as sexual predators, sexually violent offenders or predicate sex offenders), may, after registering for a period of thirty years, petition the court to be relieved of the requirement to register. [Correction Law] § 168-o(1). This section of SORA does not apply to level one offenders , nor could it since it applies only after a sex offender has registered for a thirty year period — ten years after the expiration of the registration period for a level one sex offender. There is no separate provision that explicitly provides a procedure for a level one sex offender to petition to shorten the twenty year period of registration. See [Correction Law] § 168-o(1) (applying to level two sex offenders).
There is, however, a SORA provision that allows any sex offender to petition a court for an order "modifying the level of notification." See [Correction Law] § 168-o(2) (applying to "any" sex offender required to register). Thus, any level three sex offender may petition to be designated a level two offender,
and any level two offender may petition to be designated as a level one offender. In the case of a level one sex offender, who has already been assigned the lowest level of risk, this would seem to include the right to seek a ruling that would relieve the offender from any designation and, thus, any registration requirement.
* * *
The argument that the statute is Constitutionally deficient because it does not allow Plaintiff to petition the court for relief from further registration is, however, flawed. As noted above, SORA provides for modification of findings as to the level of risk and registration requirements. Plaintiff notes, and the Defendant concedes, that level two sex offenders may, after a thirty year period of registration, petition the court to be relieved of the requirement to register. [Correction Law] § 168-o(1). It is also noted and conceded that there is no similar explicit provision allowing for a level one sex offender to petition to shorten the period of registration. See [Correction Law] § 168-o(1) (applying to level two sex offenders).
However, all sex offenders required to register under SORA, including Plaintiff, are afforded the statutory right to petition a court for an order modifying the level of notification. See [Correction Law] § 168-o(2). With respect to level one offenders, an adjustment of the risk level below level one would necessarily relieve the offender from any registration requirement.
Woe v. Spitzer , 571 F.Supp.2d at 386, 389 (citations and quotations in original, emphasis added).
To his credit, defendant acknowledges that a number of courts have determined that Correction Law § 168-o(2) precludes the relief he seeks, and some have even expressly rejected Woe in so doing. See People v Valenti , 2009 NY Misc LEXIS 2577 (Sup Ct, Suffolk Co 2009); Matter of Attorney General of State v. Simon , 27 Misc.3d 546, 548, 899 N.Y.S.2d 528 (Sup. Ct., Dutchess Co. 2010) ; People v. Manos , 55 Misc.3d 94, 96, 50 N.Y.S.3d 787 (App. Term, 2d Dept., 2d, 11th, and 13th Jud. Dists. 2017). Defendant correctly contends, however, that these decisions are all from courts of concurrent or subordinate jurisdiction, or are otherwise distinguishable, and are thus not binding on this Court. Nevertheless, insofar as none of these case have been overturned, this Court may rely on them as persuasive authority (as other courts clearly have).
See also Rocktaschel v. Pennsylvania State Police , 242 A.3d 998 at *3, 2020 WL 7311198 (Pennsylvania Commonwealth Ct. 2020) (rejecting petition to relieve offender from Pennsylvania Sexual Offender Registration and Notification Act registration based on New York conviction, citing Manos ).
Defendant also points the Court to two additional cases in which petitions brought by offenders who sought to be relieved of their SORA registration requirements were rejected in state Court, resulting in federal lawsuits being filed, which in turn were ultimately dismissed for lack of subject matter jurisdiction or for insufficient service of process. See Zuneska v. Cuomo , 2013 WL 431826 (E.D.N.Y. 2013) (no federal action for Suffolk County rejection of petition based on Woe ); Nolan v. Cuomo , 2013 WL 168674 (E.D.N.Y. 2013) (no federal action for Queens County rejection of petition based on Woe ); see also Doe v. Cuomo , 755 F.3d 105 (2d Cir. 2014) (affirming Eastern District's dismissal of federal action challenging Queens County rejection of petition based on Woe ). However, defendant's suggestion that the underlying constitutional equal protection and due process claims raised in each of the cited decisions would have succeeded had they been raised in state court is rejected as purely speculative, and as completely unsupported by those decisions. To the contrary, each decision provides yet another example of a state court rejecting a SORA modification petition that was based on Woe .
In opposing defendant's instant petition, the People direct the Court to People v. Wyatt , 89 A.D.3d 112, 931 N.Y.S.2d 85 (2d Dept. 2011), lv denied 18 N.Y.3d 803, 2012 WL 43762 (2012), People v. Ayala , 179 A.D.3d 1465, 114 N.Y.S.3d 921 (4th Dept. 2020), lv denied 35 N.Y.3d 908, 2020 WL 3422313 (2020), and People v. J.F. , 206 A.D.3d 496, 168 N.Y.S.3d 319 (1st Dept. 2022), lv denied 39 N.Y.3d 907, 2023 WL 1826800 (2023).
In People v. Wyatt , the Appellate Division, Second Department affirmed Kings County Supreme Court's adjudication of the defendant therein as a level two sex offender, and the denial of his application for a downward departure to risk level one. In discussing the broader SORA statutory scheme in the context of that opinion, the Second Department reasoned:
While SORA allows "[a]ny sex offender" to petition for modification [ Correction Law § 168-o(2) ], as a practical matter, no relief is available to a risk level one sex offender, who is already classified in the
lowest designation and has no statutory right to petition for complete relief from registration (see Matter of Attorney General of State v. Simon , 27 Misc.3d 546 [2010] ; cf. Woe v. Spitzer , 571 F.Supp.2d 382, 386 [2008] ).
Wyatt , 89 A.D.3d at 125, 931 N.Y.S.2d 85 (citations and quotations in original).
In reply, defendant correctly points out that the Second Department's reasoning that is quoted above is also dicta, insofar as it is not central to the issue decided in that case. Defendant further correctly points out that the defendant in Wyatt was a level two offender, while he is only a level one offender, and that the phase of the proceedings in each case is distinctly different. Nevertheless, these distinctions are minor, and in the final analysis, this Court finds that Wyatt is still persuasive authority from the Second Department, and when considered together with all of the other jurisprudence enumerated above (wherein multiple different courts have reached exactly the same conclusion), it is especially compelling.
Finally, even construing as dicta the Second Department's holding in Wyatt — that Correction Law § 168-o(2) provides no relief for level one sex offenders seeking to be relieved of their SORA obligations — that same reasoning has since been adopted by the Appellate Division in both the Fourth and First Departments, and pronounced as black-letter law.
In People v. Ayala , the Appellate Division, Fourth Department affirmed Erie County Court's order denying the petition of a level one offender to vacate his designation, holding:
Contrary to defendant's contention, Correction Law § 168-o (2) does not permit a petition to "vacate" a level one risk designation. That subdivision provides only for "modification" of a risk level ( § 168-o [2] ), and downward modification from risk level one is impossible because "SORA does not include a no risk category" ( People v. Ayala , 72 A.D.3d 1577, 1578 [4th Dept. 2010], lv denied 15 N.Y.3d 816 [908 N.Y.S.2d 148, 934 N.E.2d 882] [2010] [internal quotation marks omitted]).
Ayala , 179 A.D.3d at 1465, 114 N.Y.S.3d 921 (citations, quotations, and parentheticals in original).
And again, just last year, in People v. J.F. , the Appellate Division, First Department upheld New York County Supreme Court's denial of a level one offender's Correction Law § 168-o(2) petition to modify his sex offender classification, finding:
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 ( People 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 General of the State 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.
J.F. , 206 A.D.3d at 497, 168 N.Y.S.3d 319 (citations in original).
The holdings of Ayala and J.F. are directly on point here. Absent clear, contrary authority from the Appellate Division, Second Department, or from the Court of Appeals, this Court is thus bound by them. Mountain View Coach Lines v. Storms , 102 A.D.2d 663, 664, 476 N.Y.S.2d 918 (2d Dept. 1984). Defendant's contention to the contrary — that First and Fourth Department decisional authority is not controlling here — is rejected. Finally, perhaps hyper-technically, this Court notes that defendant's petition, as captioned and referenced throughout his filings, seeks an "Order to Terminate [his] Sex Offender Registration" (emphasis added). However, Correction Law § 168-o[2], on which defendant relies, only contemplates a petition "for an order modifying the level of notification" (emphasis added). Thus, on its very face, the statute on which defendant relies does not provide for the specific relief sought. In light of the foregoing, this Court finds that defendant is ineligible for modification (or "termination") of his sex offender status. Correction Law § 168-o(2) ; Wyatt , Ayala , J.F. , Valenti , Simon , Manos , Zuneska , Nolan , Doe . To the extent that Woe suggests otherwise, its holding is rejected. Id. Accordingly, defendant's petition is dismissed.
"The Appellate Division is a single State-wide court divided into departments for administrative convenience and, therefore, the doctrine of stare decisis requires trial courts in this department to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule." (Internal citations omitted.)
Since defendant is ineligible for modification of his sex offender status, this Court did not consider the merits of defendant's claim that his post-conviction conduct and character warrant the termination of all further registration obligations. Were this Court to have considered the merits of that claim, defendant's petition would have been denied for the reasons stated by the People.
CONCLUSION
Based on the foregoing, defendant is ineligible for modification (or "termination") of his sex offender status. Accordingly, defendant's petition is dismissed, and his motion is denied in all respects.
This constitutes the Decision and Order of the Court.