Bd. of Examiners of Sex Offenders of State v. D'Agostino

• Decision Date: 02 July 2015
• Docket Number: 664 KA 14-02271
• Citation: 130 A.D.3d 1449,12 N.Y.S.3d 718,2015 N.Y. Slip Op. 05799
• Parties: In the Matter of BOARD OF EXAMINERS OF SEX OFFENDERS OF the STATE of New York, Petitioner–Appellant, v. James D'AGOSTINO, Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1449

12 N.Y.S.3d 718

2015 N.Y. Slip Op. 05799

In the Matter of BOARD OF EXAMINERS OF SEX OFFENDERS OF the STATE of New York, Petitioner–Appellant

v.James D'AGOSTINO, Respondent–Respondent.

664 KA 14-02271

Supreme Court, Appellate Division, Fourth Department, New York.

July 2, 2015.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Petitioner–Appellant.

Stuart J. Larose, Syracuse, for Respondent–Respondent.

PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.

OpinionMEMORANDUM:

The Board of Examiners of Sex Offenders of the State of New York (Board) commenced this proceeding pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ), seeking an order determining respondent's risk level. The Board appeals from a revised order determining, inter alia, that the offense upon which respondent “was convicted in the Cambodian Court is not registerable.” We disagree, and we therefore reverse the revised order and remit the matter to Supreme Court for a risk level determination in compliance with Correction Law § 168–n (3).

The record establishes, and respondent does not contest, that he was convicted in Cambodia of “Child Prostitution and Exploitation” and sentenced to four years in prison in 2011. Respondent also concedes that his conviction was affirmed on appeal in Cambodia, although his sentence was reduced to 18 months. After respondent served that sentence and returned to the State of New York, the Board determined that the Cambodian offense was a registerable offense, requiring respondent to be classified pursuant to SORA. The Board prepared a case summary and risk assessment instrument, and recommended that respondent be classified as a level two risk. In preparing those documents, the Board obtained a certificate of conviction and a translation of the record from the Cambodian trial court proceedings, which was provided by the Cambodian government and translated by Interpol. Neither party disputes the accuracy of the record or the translation.

Respondent opposed the Board's determination, contending that he should not be required to register as a sex offender because the Cambodian conviction did not comport with due process. After a hearing, Supreme Court issued a revised decision and order, concluding that the crime of which respondent had been convicted met the statutory requirements of a registerable offense (see Correction Law § 168–a [2 ][a] ), but further concluding that the conviction was obtained in violation of respondent's right to due process because, at trial, the victim recanted his accusations of sexual conduct. The court concluded that the conviction was based solely upon the testimony of a police officer to whom the victim initially reported respondent's sexual conduct. Based on the foregoing conclusions, the court further concluded that respondent had not committed a registerable offense, and declined to complete the risk level assessment and make a risk level determination. The Board, which has been represented throughout the proceedings by the Onondaga County District Attorney (see Correction Law §§ 168–k [2 ]; 168–n [3] ), appeals.

Initially, we reject the Board's contention that respondent may not challenge whether he committed a registerable offense in the context of a SORA proceeding. To the contrary, the Court of Appeals has unequivocally stated that a “determination by the Board ... that a person who committed an offense in another state must register in New York is reviewable in a proceeding to determine the offender's risk level” (People v. Liden, 19 N.Y.3d 271, 273, 946 N.Y.S.2d 533, 969 N.E.2d 751 ). We also reject the Board's contention that Liden is limited to convictions from other states and, therefore, does not apply to the situation before us. The Court's determination in Liden was based on its conclusion that judicial efficiency and “good policy” are both promoted by allowing a challenge to the registerability of an offense in the same proceeding in which the court determines an offender's risk level (id. at 276, 946 N.Y.S.2d 533, 969 N.E.2d 751 ), and we conclude that those considerations apply equally to challenges to the registerability of convictions from other countries.

We agree, however, with the Board's further contention that the court erred in determining that respondent had not committed a registrable offense. Contrary to respondent's contention and the court's conclusion, respondent failed to establish that he was denied due process by the Cambodian Court, and Supreme Court therefore erred in determining that the Cambodian conviction did not constitute a registerable offense for purposes of determining respondent's risk level classification pursuant to SORA.

SORA imposes registration requirements on “ ‘[s]ex offender[s],’ ” i.e., “any person who is convicted of” certain sex offenses enumerated in the statute (Correction Law § 168–a [1 ] ). Respondent correctly concedes that the offense of which he was convicted had all of the essential elements of a sex offense, i.e., patronizing a prostitute in the third degree (Penal Law § 230. 04), when the person patronized is less than 17 years old (see Correction Law § 168–a [2 ][a][i]; [d][i] ). Respondent contends, however, that the offense does not fall within the ambit of SORA because he was denied due process by the Cambodian Court. Even assuming, arguendo, that respondent was required to establish by a mere preponderance of the evidence that the offense is not registerable (see generally People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1 ), we conclude that he failed to meet that burden because he failed to establish that he was denied due process.

Initially, we note that the Board submitted the transcript of the trial in Cambodia, and the parties agree that respondent appealed his conviction in that country. Respondent failed to submit any evidence establishing the result of that appeal other than a reduction of his sentence, however, and thus he failed to establish that he was denied due process. Furthermore, respondent also failed to submit any evidence regarding whether he had, or exercised, the right to pursue a further appeal. Inasmuch as it appears that he had the right to appeal to the Cambodian Supreme Court (see e.g. United States v. Boyajian, 2014 WL 6750230 at *2–3 ), “there already exist[s at least one] procedural vehicle[ ] for challenging the constitutional propriety of [his conviction] under the facts presented here ... Thus, a new, judicially created, remedy is not needed in this situation to ensure protection of the accused's right to due process of...