Kasckarow v. Bd. of Examiners of Sex Offenders of New York, 10237/11.

• Decision Date: 25 October 2011
• Docket Number: No. 10237/11.,10237/11.
• Citation: 2011 N.Y. Slip Op. 21379,33 Misc.3d 1028,936 N.Y.S.2d 498
• Parties: Matter of Daniel KASCKAROW, Petitioner, v. BOARD OF EXAMINERS OF SEX OFFENDERS OF The STATE of New York, Respondent.
• Court: New York Supreme Court

2011 N.Y. Slip Op. 21379

33 Misc.3d 1028

936 N.Y.S.2d 498

Matter of Daniel KASCKAROW, Petitioner,

v.BOARD OF EXAMINERS OF SEX OFFENDERS OF The STATE of New York, Respondent.

No. 10237/11.

Supreme Court, Kings County, New York.

Oct. 25, 2011.

Appellate Advocates, New York City (Warren S. Landau of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, New York City (Maria Hartofilis of counsel), for respondent.

DAVID I. SCHMIDT, J.

Petitioner Daniel Kasckarow petitions for an order and judgment, pursuant to CPLR 7801–7806, annulling and vacating the January 25, 2011 final determination of respondent Board of Examiners of Sex Offenders of the State of New York (Board) on the grounds the determination was arbitrary and capricious, was affected by error of law and involved an abuse of discretion.

It is ORDERED and ADJUDGED that the petition is dismissed.

The essence of petitioner's claim is that his Florida nolo contendere plea to the crime of indecent assault (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 (Correction Law art 6–C [SORA] ), and that, as such, the Board erred in determining that petitioner was required to register under SORA.

The underlying facts are largely undisputed. By an April 1998 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) ¹ upon a child under the age of 16.² On June 4, 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 February 1, 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 February 8, 2006. DCJS thereafter sent petitioner sex offender registration form, which petitioner executed and returned. After receiving this form, the Board, in a letter dated March 8, 2006, determined that petitioner was a sex offender required to register under SORA, and upon the recommendation of the Board, on November 14, 2006, the court (Hall, J., Supreme Court, Kings County) determined that petitioner's Final Risk Level Determination was level 1.

In October 2009, petitioner commenced an Article 78 proceeding (Supreme Court, Kings County Index No. 26493/09) to vacate the Board's determination that he was required to register as a sex offender under SORA. In a decision dated June 11, 2009, the court (Rothenberg, J.) 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 August 4, 2010, stipulated that it would recommence the registration process and “re-issue a final determination.” On January 25, 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 January 25, 2011 determination.³

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. SORA indisputably requires persons convicted of certain sex offenses in other jurisdictions to register as sex offenders when they move to New York ( see Matter of Smith v. Devane, 73 A.D.3d 179, 181–182, 898 N.Y.S.2d 702 [2010], lv. denied 15 N.Y.3d 708, 909 N.Y.S.2d 22, 935 N.E.2d 814 [2010] ). 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” (Correction Law § 168–a[2][d] [ii] ).⁴ 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–a(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 (or counts thereof) ( Matter of Smith, 73 A.D.3d at 182, 898 N.Y.S.2d 702). New York does not recognize nolo contendere pleas ( see People v. Daiboch, 265 N.Y. 125, 129, 191 N.E. 859 [1934] ).⁵ 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 ( see People v. Daiboch, 265 N.Y. at 129, 191 N.E. 859; People v. Long, 207 A.D.2d 988, 989, 617 N.Y.S.2d 97 [1994], lv. denied 85 N.Y.2d 864, 624 N.Y.S.2d 383, 648 N.E.2d 803 [1995] ), an aggravating factor for a first degree murder charge under Penal Law § 125.27(1)(a)(ix) ( see People v. Williamson, 301 A.D.2d 860, 862, 755 N.Y.S.2d 443 [2003], lv. denied 100 N.Y.2d 567, 763 N.Y.S.2d 824, 795 N.E.2d 50 [2003] ), a grounds for parole violation ( see People v. Johnson, 173 Misc.2d 254, 257, 661 N.Y.S.2d 789 [Yates County Ct. 1997] ), a grounds for disbarment ( see Matter of Ward, 18 A.D.2d 15, 16, 238 N.Y.S.2d 278 [1963] ), and denial of a civil service application ( see Dower v. Poston, 76 Misc.2d 721, 724, 351 N.Y.S.2d 272 [Sup. Ct. Albany County 1973] ).

New York does recognize Alford pleas ( see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 [1970] ), which are similar to nolo contendere pleas ( see Alford, 400 U.S. at 37, 91 S.Ct. 160 [found no material difference between a plea of nolo contendere and an Alford plea] ), 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 ( see Matter of Silmon v. Travis, 95 N.Y.2d 470, 475, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000] ). 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 ( see Matter of Silmon, 95 N.Y.2d at 475, 718 N.Y.S.2d 704, 741 N.E.2d 501), including for impeachment ( see People v. Miller, 91 N.Y.2d 372, 378, 670 N.Y.S.2d 978, 694 N.E.2d 61 [1998] ), a predicate for enhanced sentencing ( see People v. Andrews, 78 A.D.3d 1229, 1232–1233, 911 N.Y.S.2d 221 [2010], lv. denied 16 N.Y.3d 827, 921 N.Y.S.2d 191, 946 N.E.2d 179 [2011]; People v. Harvey, 235 A.D.2d 325, 652 N.Y.S.2d 960 [1997], lv. denied 89 N.Y.2d 1036, 659 N.Y.S.2d 866, 681 N.E.2d 1313 [1997] ), a predicate for civil penalties ( Matter of Hopfl, 48 N.Y.2d 859, 860, 424 N.Y.S.2d 350, 400 N.E.2d 292 [attorney disbarred based on Alford plea] ), and sex offender registration under SORA ( see People v. J.G., 171 Misc.2d 440, 445–446, 655 N.Y.S.2d 783 [Sup Ct. Richmond County 1996] ).

In sum, 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.

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. In Matter of Smith, the Board required the petitioner to register under SORA based on a guilty plea to a Texas crime requiring that the petitioner register as a sex offender in Texas, in which the court imposed a “deferred adjudication” of guilt,⁶ suspended imposition of a prison sentence, and placed the petitioner under a term of community supervision, akin to probation ( Matter of Smith, 73 A.D.3d at 181, 898 N.Y.S.2d 702). As noted above, the Third Department emphasized that it is the entry of the guilty plea that constitutes a conviction under New York law ( id. at 182, 898 N.Y.S.2d 702). Consequently, the Third Department found that the Texas guilty plea constituted a conviction requiring registration under SORA, notwithstanding the deferred adjudication of guilt ( id. at 183, 898 N.Y.S.2d 702).

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 ( see People v. Mitch, 1 Misc.3d 905[A], 2003 N.Y. Slip Op. 51513[U], 2003 WL 23100166 [Yates County Ct. 2003][guilty plea with adjudication withheld required registration under SORA]; see also Matter of Smith, 73 A.D.3d at 182–183, 898 N.Y.S.2d 702; United States v. Hardeman, 598 F.Supp.2d 1040, 1047–1048 [N.D.Cal 2009] ). Co...