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Defendant Submits a Nolo Contendre Plea

In this sex crime case, by an Information, the State of Florida charged that, on October 1, 1997, petitioner, who was 18 at the time, violated former Florida Statutes § 800.04(3) by committing an act of Sexual Battery as defined in Florida Statutes § 794.011(1)(h) upon a child under the age of 16. A New York Sex Crimes Lawyer said that, petitioner entered a plea of nolo contendere to the charge for which the court withheld adjudication, and the court entered an “order of supervision” placing petitioner on “sexual offender probation” for four years. In March 2001, the Florida court granted a defense motion to terminate petitioner’s probation and petitioner was thereafter required to register as a sex offender under Florida Statutes § 943.0435, Florida’s version of SORA.

Prior to moving to New York, petitioner sent a letter to the New York State Division of Criminal Justice Services (DCJS) informing it that he was required to register as a sex crime offender in Florida and the he intended to move to New York by February 8, 2006. DCJS thereafter sent petitioner sex crime offender registration form, which petitioner executed and returned. After receiving this form, the Board, in a letter determined that petitioner was a sex crime offender required to register under SORA, and upon the recommendation of the Board, the court determined that petitioner’s Final Risk Level Determination was level 1.

A New York Criminal Lawyer said that, petitioner commenced an Article 78 proceeding to vacate the Board’s determination that he was required to register as a sex crime offender under SORA. In a decision the court determined that petitioner was entitled to a hearing to determine whether petitioner was properly served with the Board’s notification letter informing him that he was subject to the registration requirements of SORA. Rather than proceed with such a hearing, the Board, stipulated that it would recommence the registration process and “re-issue a final determination.” Thereafter, the Board issued a new determination informing petitioner that he was required to register under SORA because he had been convicted of sex offense as set forth in Correction Law § 168-a.
A New York Criminal Lawyer said that, petitioner petitions for an order and judgment, pursuant to CPLR 7801-7806, annulling and vacating the January 25, 2011 final determination of respondent Board on the grounds the determination was arbitrary and capricious, was affected by error of law and involved an abuse of discretion.

The essence of petitioner’s claim is that his Florida nolo contendere plea to the crime of indecent assault, for which the court withheld adjudication, and entered an “order of supervision” placing petitioner on “sexual offender probation” for four years, does not constitute a conviction for purposes of the Sex Offender Registration Act, and that, as such, the Board erred in determining that petitioner was required to register under SORA.

A Nassau County Sex Crimes Lawyer said the issue in this case is whether the Florida proceeding can serve as a basis for requiring him to register as a sex crime offender under SORA.

The Court said that SORA indisputably requires persons convicted of certain sex offenses in other jurisdictions to register as sex offenders when they move to New York. Here, the Board relies upon the section requiring a person to register for a “conviction of (ii) 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”. Because SORA does not define “conviction,” the court in Matter of Smith found it appropriate to look to CPL 1.20(13), which provides that conviction includes “the entry of a plea of guilty” to an accusatory instrument.

New York does not recognize nolo contendere pleas. Nevertheless, the fact that a defendant does not technically admit guilt in a nolo contendere plea has not prevented New York from recognizing that a nolo contendere plea from another jurisdiction constitutes a conviction for sentencing a defendant as a second felony offender.

New York does recognize Alford pleas, which are similar to nolo contendere pleas, and in which a court will accept a plea even where a defendant negates an essential element of the charged crime in his or her allocution. Importantly, the Court of Appeals has recognized that, from the state’s perspective, an Alford plea is no different from any other guilty plea, and may be used for the same purposes as any other conviction, including for impeachment, a predicate for enhanced sentencing, a predicate for civil penalties, and sex offender registration under SORA.

In sum, the Court held that a nolo contendere plea is generally deemed a conviction. A Queens Drug Possession Lawyer said there is also nothing unique about SORA that suggests that a nolo contendere plea should be treated differently for purposes of SORA registration. Accordingly, a nolo contendere plea is sufficiently akin to a guilty plea to be deemed a conviction for purposes of CPL 1.20(13), and thus may be considered a conviction for purposes of SORA.

Petitioner nevertheless argues that the Florida proceeding should not be deemed a conviction not just because of the nolo contendere plea, but also because the adjudication was withheld. Such an argument was essentially rejected by the Appellate Division, Third Department, in Matter of Smith. By parity of reasoning with Matter of Smith, it is petitioner’s nolo contendere plea here that constitutes the conviction, and the fact that adjudication was withheld has no bearing on whether the Florida crime constitutes a conviction for purposes of SORA. Courts have come to similar conclusions with respect to use of an adjudication withheld for purposes of a parole violation.

There is also nothing fundamentally unfair about deeming plaintiff’s Florida proceeding a conviction for purposes of SORA, since, as plaintiff concedes, plaintiff’s nolo contendere plea with adjudication withheld for violating Florida Statutes § 800.04(3) constitutes a conviction for purposes of Florida’s sex registration requirements, and required him to register as a sex offender in Florida. Indeed, Florida courts have held that a nolo contendere plea with adjudication withheld is generally considered a conviction for purposes of determining a defendant’s sentence for subsequent convictions.

Petitioner nevertheless submits that the nolo contendere plea with adjudication withheld should be considered like a youthful offender adjudication. This argument, however, ignores the fact that Florida has its own youthful offender statute, and that petitioner was not adjudicated as a youthful offender under that statute. Moreover, even if petitioner had been adjudicated a youthful offender under Florida law, such treatment would not have affected petitioner’s obligation to register as a sexual offender in Florida. Since a Florida youthful offender would have to register as a sex offender in Florida, the proceeding would be considered a conviction under SORA, even though a New York youthful offender would not have to.

In sum, the Court held that petitioner has failed to demonstrate that his Florida nolo contendere plea with adjudication withheld may not be considered a conviction under SORA. In the absence of any other grounds for annulling or vacating the Board’s determination that he is required to register as a sex offender under SORA, and in the absence of any factual issues, the petition must be. Accordingly, the Court held that, the petition be dismissed.

The rule is that, a nolo contendere plea is generally deemed a conviction. If you have been charged or convicted of a sex crime, seek the help of a New York Rape Attorney and/or New York Criminal Attorney in order to be informed of the legal consequences of your case. Call us at Stephen Bilkis and Associates for free consultation.

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