Smith v. Devane

73 A.D.3d 179, 898 N.Y.S.2d 702
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 8, 2010
StatusPublished
Cited by12 cases

This text of 73 A.D.3d 179 (Smith v. Devane) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Devane, 73 A.D.3d 179, 898 N.Y.S.2d 702 (N.Y. Ct. App. 2010).

Opinion

OPINION OF THE COURT

Spain, J.P.

In 1994, in Texas District Court, Victoria County, petitioner, then a resident of Texas, entered a guilty plea as charged in an indictment to first degree aggravated sexual assault of a child, a felony (see Tex Penal Code Ann § 22.021), stemming from charges he subjected a 10-year-old relative to sexual contact on several occasions. The Texas court, acting in its discretion under chapter 42 of the Texas Code of Criminal Procedure Annotated, imposed a “deferred adjudication” of guilt, suspended imposition of a prison sentence, and placed petitioner under the maximum 10-year term of community supervision, akin to probation, with 26 terms and conditions, and community service (see Tex Code Grim Proc Ann, art 42.12, §§ 3, 5). As a result of the plea, under Texas law, he is required to annually register [181]*181as a sex offender, for life, in Texas (see Tex Code Grim Proc Ann, art 62.001 [5] [A]).

After petitioner moved to New York, respondent Board of Examiners of Sex Offenders (hereinafter Board) notified him by letter dated May 1, 2008 that he was required to register in New York under the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]) based upon that Texas felony sex offense for which he was required to register as a sex offender in that jurisdiction (see Correction Law § 168-a [2] [d] [ii]).1 Additionally, respondent Division of Criminal Justice Services (hereinafter DCJS) notified petitioner by letter dated May 14, 2008 that he was also required to register any Internet accounts (with service providers) belonging to him and any e-mail addresses and screen names used by him for Internet chats, social networking or instant messaging (see Correction Law § 168-b [1] [a]). In June 2008, the Board completed a risk level assessment of petitioner, and made a risk level recommendation2 to the court in New York County, the county of petitioner’s residence (see Correction Law § 168-k [2]).

Petitioner commenced this CPLR article 78 proceeding in Albany County seeking, among other things, reversal of the Board’s determination that he is required to register as a sex offender in this state and of DCJS’s Internet access disclosure directive.3 Supreme Court held that the Board had properly determined that petitioner is a sex offender required to register under SORA, and dismissed the petition. Petitioner now appeals.

Pursuant to Correction Law § 168-a (2), as amended in 1999 (see L 1999, ch 453), certain defendants who reside in this [182]*182state and were convicted of sex offenses in other jurisdictions must register as sex offenders in New York (see People v Kennedy, 7 NY3d 87, 89 [2006]; see also Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745, 749 [2007]). As relevant here, that section provides that a register-able sex offense includes “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” (Correction Law § 168-a [2] [d] [ii]; see People v Mann, 52 AD3d 884, 885 [2008]). Petitioner’s principal contention is that the deferred adjudication he received in Texas upon his guilty plea is not a “conviction” under Texas law4 and, thus, while he is concededly required to register as a sex offender for life in that jurisdiction, he is not required to register in New York under Correction Law § 168-a (2) (d) (ii). We find this argument untenable.

While SORA does not define “conviction,” it is appropriate to look to CPL 1.20 (13), which unequivocally provides that a conviction includes “the entry of a plea of guilty” to an accusatory instrument (or counts thereof). Indeed, a guilty plea qualifies as a conviction in this state, even before sentencing (see People v Montilla, 10 NY3d 663, 667 [2008]; People v Wood, 60 AD3d 1350, 1350 [2009]). Here, the Texas court records reflect that petitioner entered a plea of guilty to a sex offense and said plea was “received” by the court and “entered of record ... as the plea of said defendant” and, thereafter, the adjudication of guilt was deferred and community supervision and other conditions imposed. As it is undisputed that the underlying Texas sex offense to which petitioner entered a guilty plea was a felony that required registration as a sex offender in that jurisdiction [183]*183for life (see Tex Code Crim Proc Ann art 62.001 [5] [A]; see also People v Kennedy, 7 NY3d at 91), and entry of a guilty plea constitutes a “conviction” under New York law, the Board correctly determined that petitioner was required to register as a sex offender under Correction Law § 168-a (2) (d) (ii), notwithstanding that he received a discretionary deferred adjudication under Texas criminal procedure upon that guilty plea (see Correction Law § 168-k [2]).

Notably, for legitimate policy reasons, SORA does not provide that the various laws of other jurisdictions will control in the determination of whether an admitted, registered sex offender in that jurisdiction must register in this state upon relocating here. Whether petitioner is required to register in this state should ultimately be resolved as a matter of New York law, with the aim of giving effect to the Legislature’s remedial intent. In so doing, we recognize that enforcement of our SORA provisions is a proper exercise of this state’s police powers (see Historical and Statutory Notes, McKinney’s Cons Laws of NY, Book 10B, Correction Law § 168, at 278; L 1995, ch 192, § 1). Previously, we held that New York is not required under full faith and credit principles to assign an offender the same risk level classification as that designated by the jurisdiction where the registerable conviction occurred, recognizing that

“[t]he administrative manner in which a state [like New York] chooses to exercise the registration requirements for a sex offender who moves into its jurisdiction falls squarely within the power of that state and is not governed by the procedures in effect in the state [like Texas] where the offender previously resided” (People v Arotin, 19 AD3d 845, 846-847 [2005]).

Treating petitioner’s Texas guilty plea on parity with a guilty plea entered in this state, i.e., as a conviction, for purposes of sex offender registration in this state is fundamentally fair and furthers SORA’s purposes of public protection and enhancing law enforcement efforts to combat sex crimes (see Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d at 752). Moreover, the Board’s treatment of petitioner’s Texas guilty plea and deferred adjudication as a conviction requiring registration as a sex offender in this state results in that plea having the same (or no greater) consequence in this state as in Texas, i.e., registration as a sex offender.

In the absence of any reason to conclude that the Legislature in amending SORA in 1999 (see Correction Law § 168-a [2]) did [184]*184not intend the word “conviction” to have the same statutory meaning given that term in the Criminal Procedure Law, we decline to interpret this important provision of SORA in a manner that would lead to unintended and “absurd consequences” (Long v State of New York,

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Cite This Page — Counsel Stack

Bluebook (online)
73 A.D.3d 179, 898 N.Y.S.2d 702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-devane-nyappdiv-2010.