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Sex Offenders of the State of New York

This is a proceeding wherein the petitioner, DK, petitions for an order and judgment, pursuant to CPLR 7801-7806, annulling and vacating the 25 January 2011 final determination of respondent Board of Examiners of Criminal Sex Offenders of the State of New York on the grounds the determination was arbitrary and capricious, was affected by error of law and involved an abuse of discretion.

The court dismisses the petition.

The petitioner claims that his Florida nolo contendere plea to the crime of indecent assault under former Fla Stat § 800.04[3] 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.

The undisputed facts enumerate that by an April 1998 Information, the State of Florida charged, on October 1, 1997, the petitioner, who was 18 at the time, for violating 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. On 4 June 1999, 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 dated 1 February 2006, to the New York State Division of Criminal Justice Services (DCJS) informing it that he was required to register as a sex offender in Florida and the he intended to move to New York by 8 February 2006. DCJS thereafter sent petitioner sex offender registration form, which petitioner executed and returned. After receiving this form, the Board, in a letter dated 8 March 2006, determined that petitioner was a sex offender required to register under SORA, and upon the recommendation of the Board, on 14 November 2006, the court determined that petitioner’s Final Risk Level Determination was level 1.

In October 2009, petitioner commenced an Article 78 proceeding to vacate the Board’s determination that he was required to register as a sex offender under SORA. In a decision dated 11 June 2009, 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, on 4 August 2010, stipulated that it would recommence the registration process and “re-issue a final determination.” On 25 January 2011, 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, and petitioner has since commenced the instant proceeding to vacate or annul the 25 January 2011 determination.

Petitioner’s claim turns on whether the Florida proceeding can serve as a basis for requiring him to register as a sex offender under SORA. It was held in Matter of Smith v Devane that SORA indisputably requires persons convicted of certain sex offenses in other jurisdictions to register as sex offenders when they move to New York.

In the case at bar, 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 under Correction Law § 168[2][d][ii]). Although petitioner concedes that he was required to register as a sex offender in Florida based on the Florida proceeding, petitioner asserts that the nolo contendere plea with adjudication withheld does not qualify as a conviction for purposes of Correction Law § 168(2)(d)(ii).

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, does not recognize nolo contendere pleas as was also held in People v Daiboch. Nevertheless, the fact that a criminal 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 criminal offender.

The court holds that a nolo contendere plea is generally deemed a conviction. 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.

In the case at bar, the petitioner’s nolo contendere plea 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 akin to People v Mitch and United States v Hardeman. Courts have come to similar conclusions with respect to use of an adjudication withheld for purposes of a parole violation as in Cassarino v New York State Div. Parole and Lesnowski v Von Holden.

The court also finds that there is 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, as in Montgomery v State, State v Mason and Smith v State, 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 contends that the nolo contendere plea with adjudication withheld should be considered like a youthful offender adjudication. The court finds that this ignores the fact that Florida has its own youthful offender statute under Florida Statutes Chapter 958 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 register as held in People v Kuey and People v Coolbaugh.

Petitioner also argues that registration should not be required here because there is no New York felony sex offense that is equivalent to Florida Statutes § 800.04(3). Assuming this to be correct, Correction Law § 168(2)(d)(ii) is intended to require registration for out of state sex offender felonies that have no New York equivalent. This purpose is evident from the legislative history of SORA. When SORA was first enacted, the only out of state convictions that required registration in New York were felonies with the same essential elements as a New York requiring registration.

The court finds it clear that the legislature added what is now Correction Law § 168(2)(d)(ii) in order to include offenses from other jurisdictions that do not have the same essential elements as New York sex offenses as was held in People v Kennedy.

Under these circumstances, and in light of the non-punitive, remedial public safety purpose underlying SORA, the lack of an equivalent New York felony conviction is not grounds for exempting petitioner from the registration requirement akin to Matter of North v Board of Examiners of Sex Offenders.

The court finds 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 crimes offender under SORA, and in the absence of any factual issues, the petition must be dismissed.

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