People v. Hernandez

• Decision Date: 06 May 1999
• Parties: , 711 N.E.2d 972, 1999 N.Y. Slip Op. 4089 The PEOPLE of the State of New York, Respondent, v. Jose O. HERNANDEZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 695

689 N.Y.S.2d 695

93 N.Y.2d 261, 711 N.E.2d 972, 1999 N.Y. Slip Op. 4089

The PEOPLE of the State of New York, Respondent, v. Jose O. HERNANDEZ, Appellant.

Court of Appeals of New York.

May 6, 1999.

Judah Serfaty, Hempstead, Matthew Muraskin and Kent V. Moston for appellant.

Denis Dillon, District Attorney of Nassau County, Mineola (Robert A. Schwartz and Peter A. Weinstein of counsel), for respondent.

OPINION OF THE COURT

BELLACOSA, J.

This appeal stems from defendant's conviction for attempted rape and sexual abuse, each in the first degree. Defendant raises three issues: (1) the trial court's denial of his lawyer's challenge for cause of a potential juror, a New York State legislator; (2) a jury instruction defining attempt as a "substantial step" toward the completion of the crime (rather than specifying that the act come "dangerously close" to completion of the crime); and (3) the appealability, as part of the judgment of conviction, of his certification as a "sex offender." The last issue presents a plausible and ultimately persuasive claim to appellate review that requires modification of the order appealed to us, and remittal to the Appellate Division. Defendant's first two arguments are without merit.

The conviction in this case resulted from an incident that occurred in February 1995. Defendant accosted a woman outside her home, told her that he wanted to "make love" to her, that he would kill her if she made a noise, and then choked her when she cried out. The victim feigned unconsciousness as defendant dragged her toward the basement of her apartment building. He touched her vaginal area through the outside of her clothing. At the door to the basement, the victim broke free, ran to and was admitted into a neighbor's apartment. The neighbor called the police, who arrived and transported the victim and her husband to the hospital. Meanwhile, defendant was discovered hiding in bushes near the apartment building when police officers canvassed the area. After returning to her apartment from the hospital, the victim was able to identify defendant, who was still held at the scene. Defendant was indicted for attempted rape and sexual abuse, both in the first degree.

At jury selection, defendant asserted a challenge for cause. The prospective juror, a State legislator, answered various questions about his views and position on crime and whether his vote, if he were a juror in the case, might become a political liability. The court denied the challenge, and a defense peremptory challenge ultimately removed the legislator from the case as a possible juror.

At the jury instruction phase of the trial, the court read the attempt instruction from the version of the Criminal Jury Instructions Manual in effect at the time:

"Such conduct does not have to be the last act necessary to effect the commission of the rape but must be conduct which constitutes a substantial step towards the commission of the rape. The required conduct must be related to and directed toward the accomplishment of the rape, conduct which goes beyond mere preparation and planning, conduct so related to the commission of the rape that in all reasonable probability the rape would have been committed but for some interference or intervention" (see, 2 CJI[N.Y.] PL 110.00, at 46-50).

Defendant objected on the ground that the court should not have stated that "attempt" would be fulfilled by a "substantial step" toward the rape, but rather that conduct "dangerously close" to completed rape should have been the standard.

The jury rendered a guilty verdict, and sentencing occurred on April 1, 1996. The court's sentence was comprised of five elements: (1) time to be served; (2) a surcharge and crime victim assistance fee on the attempted rape count; (3) a permanent order of protection for the victim; (4) certification that defendant was a sex offender pursuant to Correction Law article 6-C, the Sex Offender Registration Act (SORA, commonly known as "Megan's Law"); and (5) a finding of no restitution.

At sentencing, defendant raised an ex post facto objection to the SORA certification, claiming that the crime was committed prior to the enactment of the SORA in January 1996. At the close of the sentencing proceeding, the clerk advised defendant, "you have the right to appeal from this sentence and these proceedings."

At the Appellate Division, defendant raised the same three points he now asserts before this Court. In affirming the judgment of conviction, the Appellate Division did not directly address defendant's jury selection and instruction arguments (250 A.D.2d 704, 673 N.Y.S.2d 169). It also avoided the merits of the SORA ex post facto claim. Instead, merely citing People v. Stevens, 91 N.Y.2d 270, 669 N.Y.S.2d 962, 692 N.E.2d 985, that court held the SORA certification not reviewable on direct appeal from the judgment. A Judge of this Court granted leave to appeal from the Appellate Division order.

I.

Defendant urges that his certification as a sex offender should be appealable as part of a direct appeal from the judgment of conviction. The remedy he seeks, if entitled to this appellate step, is remittal to the Appellate Division for consideration of the constitutional objection to SORA.

The term "certification" appears only in Correction Law § 168-d(1), which addresses the "duties of the court," as follows:

"Upon conviction the court shall certify that the person is a sex offender and shall include the certification in the order of commitment. The court shall also advise the sex offender of the duties of this article."

There is no other mention of the term "certification" in Correction Law article 6-C, and the word is not defined in the statute (see, Correction Law § 168-a). The topic generally does not appear as the subject of remarks in the Bill Jacket, commentary or legal articles, which tend to focus on the registration and notification elements that must be "determined" under SORA (see generally, Bill Jacket, L. 1995, ch. 192; Bonacquist, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 10B, Correction Law art. 6-C, 1999 Cum. Pocket Part, at 85-86; see also, Note, The Fate of "Megan's Law" in New York, 18 Cardozo L. Rev. 181 [1996] ). One New York State case addresses "certification" in a different procedural context (People v. Griffin, 171 Misc.2d 145, 652 N.Y.S.2d 922). The precedents of this Court have not reviewed "certification", but, rather, narrowly address the subsequent phase of "risk level determination" (see, People v. Stevens, 91 N.Y.2d 270, 669 N.Y.S.2d 962, 692 N.E.2d 985, supra ). We, therefore, consider the issue now urged on a virtual tabula rasa. It is a matter of first impression that must, nevertheless, be fitted into the multifaceted legislative plan and into Stevens.

What we do know from the plain language of SORA is that (1) the court shall certify that the person is a sex offender upon conviction, and (2) the certification shall be included in the order of commitment (see, Correction Law § 168-d). The answer to the question before us is less plain. We are ultimately persuaded, however, that "certification" is appealable and reviewable as part of the judgment of conviction.

A. Certification Upon Conviction

"A judgment is comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence" (CPL 1.20 ). " 'Conviction' means the entry of a plea of guilty to, or a verdict of guilty" (CPL 1.20 ). " 'Sentence' means the imposition and entry of sentence upon a conviction" (CPL 1.20 ). A defendant may appeal to an intermediate appellate court "as of right" from a judgment (CPL 450.10). These standard, elementary principles lay the groundwork for the new appellate wrinkle presented by this case.

Here, defendant's certification was unmistakably part of the court's final adjudication with respect to defendant's crimes (see, People v. Lyday, 241 A.D.2d 950, 661 N.Y.S.2d 325). The certification was rendered in open court, together with other elements of disposition--the surcharge assessment, the order of protection and restitution determinations. They formed an integral part of the conviction and sentencing. The defendant was even advised by the court clerk that he had the right to appeal from the entire proceedings. While that statement and all-inclusive characterization cannot create rights or make procedural law, and is not ipso facto dispositive of the issue, it helpfully demonstrates that the "certification" was treated and deemed by the court as part of the plenary adjudication of defendant's conviction and sentence. It summed up the adjudication in the whole and set the stage for a next act.

An examination of this Court's treatment of the other elements of defendant's adjudication also provides useful guidance for determining whether defendant's "certification" should be deemed appealable as part of the judgment. In particular, the statutory mandatory surcharge provision is procedurally parallel to SORA's certification provision. The surcharge section provides that "there shall be levied at sentencing a mandatory surcharge and a crime victim assistance fee in addition to any sentence required or permitted by law" (Penal Law § 60.35 [emphasis added] ). As with the SORA provision, the duties of the court are prescribed in mandatory form. The mandatory surcharge is levied at sentencing. The mandatory SORA certification is effected by operation of law upon conviction and is pronounced at sentence. Since both conviction and sentencing are definitionally part of the judgment, the appealability-reviewability of the SORA certification should enjoy equivalent treatment to the surcharge component. This Court has itself previously reviewed a constitutional challenge to the application of the mandatory surcharge imposed pursuant to Penal Law § 60.35 (see, People v. Barnes, 62 N.Y.2d 702, 476 N.Y.S.2d 528, 465 N.E.2d 35; see also, People v....