People v. Buyund

• Decision Date: 13 November 2019
• Docket Number: 2016–04948,Ind.No. 4558/14
• Parties: The PEOPLE, etc., Respondent, v. Donovan BUYUND, Appellant.
• Court: New York Supreme Court — Appellate Division

179 A.D.3d 161

112 N.Y.S.3d 179

The PEOPLE, etc., Respondent,

v.Donovan BUYUND, Appellant.

2016–04948

Ind.No. 4558/14

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

Argued—March 1, 2019

November 13, 2019

Paul Skip Laisure, New York, N.Y. (Patricia Pazner of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Daniel Berman of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.

OPINION & ORDER

LASALLE, J.

The main issue raised by the defendant on appeal is whether his conviction of burglary in the first degree as a sexually motivated felony is a registerable sex offense under the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA). Based upon the statutory language of Correction Law § 168–a(2)(a), we are constrained to answer this question in the negative.

I. Facts

On June 4, 2014, at approximately 11:15 p.m., the defendant entered the victim's apartment while she was asleep on the couch. The defendant exposed his penis, got on top of the victim, and placed his forearm on her chest and hand over her mouth, preventing her from breathing. The defendant threatened the victim and attempted to place his penis in her vagina and mouth. The victim fought with the defendant and attempted to run out of the apartment. The defendant and the victim struggled at the top of a flight of stairs, resulting in the victim falling down the stairs.

As a result of this incident, the defendant was charged under an indictment with burglary in the first degree as a sexually motivated felony ( Penal Law §§ 140.30[2] ; 130.91), burglary in the first degree ( Penal Law § 140.30[2] ), attempted rape in the first degree ( Penal Law §§ 110.00, 130.35[1] ), attempted criminal sexual act in the first degree ( Penal Law §§ 110.00, 130.50[1] ), burglary in the second degree as a sexually motivated felony ( Penal Law §§ 140.25[2] ; 130.91), burglary in the second degree ( Penal Law § 140.25[2] ), assault in the second degree as a sexually motivated felony ( Penal Law §§ 120.05[2] ; 130.91), assault in the second degree ( Penal Law § 120.05[6] ), and two counts of criminal obstruction of breathing or blood circulation ( Penal Law § 121.11[a], [b] ).

On March 3, 2016, the defendant pleaded guilty to burglary in the first degree as a sexually motivated felony, and the Supreme Court promised him a sentence of 11 years' imprisonment to be followed by 10 years of postrelease supervision, SORA registration, and an order of protection in favor of the victim. The remaining nine counts of the indictment were dismissed based upon the defendant's plea of guilty to count one. On April 1, 2016, the defendant was sentenced as promised. The defendant indicated that he understood his responsibilities under SORA, and the court certified the defendant a sex offender at sentencing.

The defendant now appeals to this Court, arguing that the Supreme Court erred in certifying him a sex offender, because a conviction of burglary in the first degree as a sexually motivated felony is not a registerable sex offense under SORA. The defendant also argues that the sentence imposed by the court was excessive.

II. Analysis

All "sex offenders" in New York State are required to register pursuant to SORA. A person is deemed a "sex offender" if they are convicted of a "sex offense" as defined in Correction Law § 168–a(2) or a "sexually violent offense" as defined in Correction Law § 168–a(3) (see Correction Law § 168–a[1] ).

Effective April 13, 2007, the New York State Legislature enacted the Sex Offender Management and Treatment Act (hereinafter SOMTA) (L 2007, ch 7, as amended). The legislative findings made in section 10.01 of the Mental Hygiene Law provide the following:

"[t]hat recidivistic sex offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management. Civil and criminal processes have distinct but overlapping goals, and both should be part of an integrated approach that is based on evolving scientific understanding, flexible enough to respond to current needs of individual offenders, and sufficient to provide meaningful treatment and to protect the public" ( Mental Hygiene Law § 10.01[a] ).

The purpose of SOMTA was to create "comprehensive reforms to enhance public safety by allowing the State to continue managing sex offenders upon the expiration of their criminal sentences, either by civilly confining the most dangerous recidivistic sex offenders, or by permitting strict and intensive parole supervision of offenders who pose a lesser risk of harm" (Governor's Program Bill Mem, Bill Jacket, L 2007, ch 7 at 5; see Senate Introducer's Mem in Support, Bill Jacket, L 2007, ch 7 at 19).

SOMTA enacted section 10.03(p) of the Mental Hygiene Law, which originally defined a sex offense as

"an act or acts constituting: (1) any felony defined in article one hundred thirty of the penal law, including a sexually motivated felony; (2) patronizing a prostitute in the first degree as defined in section 230.06 of the penal law, or incest in the second degree as defined in section 255.26 of the penal law, or incest in the first degree as defined in section 255.27 of the penal law ; (3) a felony attempt or conspiracy to commit any of the foregoing offenses set forth in this subdivision; or (4) a designated felony, as defined in subdivision (f) of this section, if sexually motivated and committed prior to the effective date of this article."

Subdivision (f) of section 10.03 of the Mental Hygiene Law lists various felony offenses, many of which are not sexual in nature, and includes, as relevant to this appeal, "burglary in the first degree as defined in section 140.30."

At the same time that the Legislature enacted SOMTA, it also created a new crime under article 130 of the Penal Law entitled sexually motivated felony ( Penal Law § 130.91, as added by L 2007, ch 7, § 29, as amended). A sexually motivated felony pursuant to Penal Law § 130.91 is defined in subdivision one as follows: "A person commits a sexually motivated felony when he or she commits a specified offense for the purpose, in whole or substantial part, of his or her own direct sexual gratification." In subdivision two of the statute, the "specified offense[s]" are listed and include crimes such as assault, arson, robbery, burglary, and murder, which previously were not statutory sex crimes that required registration under SORA. However, under Penal Law § 130.91, if any of the specified offenses are committed by an individual for their own sexual gratification, then the offense is considered a "sexually motivated felony." Thus, SOMTA "amend[ed] the list of registerable crimes [under SORA] so that a defendant convicted of a Sexually Motivated Felony [is] required to register [as a sex offender]" (Senate Introducer's Mem in Support, Bill Jacket, L 2007, ch 7 at 16).

After SOMTA was enacted, Correction Law § 168–a(2)(a) was amended to define a "sex offense" as follows:

"2. ‘Sex offense’ means: (a)(i) a conviction of or a conviction for an attempt to commit any of the provisions of sections 120.70, 130.20, 130.25, 130.30, 130.40, 130.45, 130.60, 230.34, 230.34–a, 250.50, 255.25, 255.26 and 255.27 or article two hundred sixty-three of the penal law, or section 135.05, 135.10, 135.20 or 135.25 of such law relating to kidnapping offenses, provided the victim of such kidnapping or related offense is less than seventeen years old and the offender is not the parent of the victim, or section 230.04, where the person patronized is in fact less than seventeen years of age, 230.05, 230.06, 230.11, 230.12, 230.13, subdivision two of section 230.30, section 230.32, 230.33, or 230.34 of the penal law, or section 230.25 of the penal law where the person prostituted is in fact less than seventeen years old, or (ii) a conviction of or a conviction for an attempt to commit any of the provisions of section 235.22 of the penal law, or (iii) a conviction of or a conviction for an attempt to commit any provisions of the foregoing sections committed or attempted as a hate crime defined in section 485.05 of the penal law or as a crime of terrorism defined in section 490.25 of such law or as a sexually motivated felony defined in section 130.91 of such law."

On appeal, the defendant argues that the Supreme Court erroneously certified him as a sex offender subject to SORA because his conviction of burglary in the first degree as a sexually motivated felony is not a registerable sex offense under Correction Law § 168–a(2)(a). In support of his argument, the defendant relies upon the following language from the statute:

"2. ‘Sex offense’ means: (a) ... (iii) a conviction of or a conviction for an attempt to commit any provisions of the foregoing sections committed or attempted as a hate crime defined in section 485.05 of the penal law or as a crime of terrorism defined in section 490.25 of such law or as a sexually motivated felony defined in section 130.91 of such law."

The defendant argues that the plain meaning of the statute is that the only sexually motivated felonies under Penal law § 130.91 which are registerable under SORA are "a conviction of or a conviction for an attempt to commit any provisions of the foregoing sections," those being convictions for crimes specifically enumerated in subparagraphs (i) and (ii) of Correction Law § 168–a(2)(a). Since burglary in the first degree under Penal Law § 140.30 is not one of the Penal Law sections listed in subparaghraphs (i) and (ii) of Correction Law § 168–a(2)(a), the defendant argues that he was not convicted of a sex offense under SORA and cannot be required to register as a sex offender.

The People counter that the defendant's argument is unpreserved for appellate review and, in any event, without merit because sexually motivated felonies are, in effect, their own category of registerable sex offenses. We...