Summary
In Miguel, our sister appellate court held that an appeal from a risk level determination "does not bring up for review [a] defendant's claim that his underlying New York felony conviction was not for an offense requiring registration as a sex offender.
Summary of this case from People v. MatosOpinion
06-14-2016
The PEOPLE of the State of New York, Respondent, v. Gerardo MIGUEL, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Arthur H. Hopkirk of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Arthur H. Hopkirk of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive of counsel), for respondent.
Order, Supreme Court, New York County (Patricia Nunez, J.), entered on or about August 7, 2014, which adjudicated defendant a level one sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
Although this appeal from a risk level determination is not subject to dismissal, it does not bring up for review defendant's claim that his underlying New York felony conviction was not for an offense requiring registration as a sex offender. Sex 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 (see People v. Hernandez, 93 N.Y.2d 261, 267, 689 N.Y.S.2d 695, 711 N.E.2d 972 [1999] ; People v. Smith, 60 A.D.3d 580, 876 N.Y.S.2d 372 [1st Dept.2009], lv. denied 12 N.Y.3d 921, 884 N.Y.S.2d 702, 912 N.E.2d 1083 [2009] ; compare People v. Liden, 19 N.Y.3d 271, 946 N.Y.S.2d 533, 969 N.E.2d 751 [2012] [administrative determination that out-of-state conviction requires registration reviewable in risk level proceeding] ), but defendant did not appeal. Contrary to defendant's contention, People v. Baluja, 109 A.D.3d 803, 971 N.Y.S.2d 213 (2d Dept.2013), lv. denied 22 N.Y.3d 856, 2013 WL 6097137 (2013) did not address the reviewability issue presented here.
Since the issue is one of reviewability by this Court, it is of no moment that the SORA hearing court and the parties engaged in the essentially academic exercise of litigating the issue of whether defendant was required to register as a sex offender, an issue that had necessarily been decided at his sentencing.
FRIEDMAN, J.P., SWEENY, WEBBER, GESMER, JJ., concur.