Issue Presented:

Was Mr. Buyund properly certified as a sex offender at sentencing for his conviction for burglary as a sexually motivated felony even though this charge is not listed as a registrable offense under Correction Law § 168-a?

The Second Department held that he was not, and vacated his SORA certification.  Although unpreserved, it fell within the illegal sentence exception to the preservation doctrine.

Held:

Unpreserved.  A defendant is required to preserve at sentencing a challenge to unlawful SORA certification, which does not fall under the illegal sentence exception because SORA certification is not part of the sentence.

Discussion:

The majority was happy to punt on the primary issue instead of joining lower courts across the state, as well as the Second Department, in recognizing that a poorly-worded phrase in Correction Law § 168-a(2)(a), likely the result of a drafting error, does not permit sex offender registration for defendants convicted of sexually motivated felonies that are not expressly listed in SORA.

Instead, it found that Mr. Buyund’s illegal SORA certification was unpreserved because he had failed to object at sentencing to an issue that no one in the courtroom realized existed.  The majority held that SORA certification is not a part of the sentence, which means that the illegal sentence exception to the preservation doctrine does not apply, no matter how “readily discernible” the issue may be.

Although the Court had held in People v. Hernandez, 93 N.Y.2d 261 (1999), that SORA certification is appealable as part of a judgment of conviction, the majority claimed Hernandez did not expressly hold that it was a part of the sentence.  

Rather, SORA has long been considered a civil, non-punitive collateral consequence of a conviction; its placement in the Correction Law rather than the Criminal Procedure Law or Penal Law bolsters that impression.  It would be “unworkable” to try to differentiate between the various components of SORA, such as certification vs. the leveling hearing vs. the registration obligations—they are all a collateral aspect of a conviction, not part of the sentence.  The majority also relied on dicta in People v. Nieves, 2 N.Y.3d 310 (2004), a case involving orders of protection, which brought up SORA as an example of something that is part of the judgment of conviction but not the sentence.

With respect to future cases involving unpreserved challenges to illegal SORA certifications, the majority suggested that the Appellate Division exercise its interest of justice jurisdiction.

In a dissent joined by Judge Rivera, Judge Wilson corrected the majority’s interpretation of Hernandez, which had in fact expressly rejected an argument by the prosecution that SORA certification is a “nonsentence consequence of the conviction.”  A subsequent passage relied by the majority was an alternative finding that even if SORA certification were not part of the sentence, it was certainly part of the judgment of conviction.  For this reason, a few years later the court interpreted Hernandez as holding that SORA certification is part of the sentence in People v. Smith, 15 N.Y.3d 669, 674 n.2 (2010).  Yet, the majority was content to disregard the language in Smith as mere dicta, despite its own reliance on the dicta in Nieves, a case Wilson demonstrated was readily distinguishable.

CAL Observes:

This was an entirely outcome-driven yet short-sighted decision by an unfriendly court.  There was no question that Mr. Buyund’s offense was sexual in nature, and that he would have been offered a different plea bargain if anyone had realized burglary as a sexually motivated felony was not technically registrable—which Judge Wilson characterized as “quite clear” in the statute, and the majority did not bother attempting to refute.  For this reason, Judge Wilson’s remedy would have been vacatur of the plea, not just the SORA certification as the Second Department had held, so that the prosecution could correct its mistake and Mr. Buyund could make a knowing choice of whether to accept the new plea.

One could speculate that an affirmance of the Second Department’s holding that the conviction was not registrable might have prompted the Legislature to amend the statute to correct what everyone agrees was a drafting error, so that future convictions for sexually motivated felonies would be unquestionably registrable.

Instead, however, in order to achieve the outcome it wanted for Mr. Buyund, the majority opted to harm all future defendants who are illegally certified as sex offenders even in non-sexual cases —including Judge Wilson’s example of someone who passes a bad check — by placing the burden on them to make an objection at sentencing to something they have the least information about of anyone else in the room.  Experience tells us that the majority’s proposed solution, the Appellate Division’s interest of justice jurisdiction, is unlikely to save the day for the vast majority of defendants in that position.

Breaking News:

On January 18, 2022, the First Department unambiguously held in People v. Simmons, ACN 2019-3122, that sexually-motivated felonies are not registrable based on the plain language of the statute, citing and agreeing with the Second Department.  (The defense had fully litigated the issue during the plea and sentencing, thus avoiding the preservation problem in Buyund.)  Watch out for the People’s leave application on this one.