People v. Liden

• Decision Date: 21 December 2010
• Parties: The PEOPLE of the State of New York, Respondent, v. Scott LIDEN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

913 N.Y.S.2d 200

79 A.D.3d 598

The PEOPLE of the State of New York, Respondent,

v.Scott LIDEN, Defendant-Appellant.

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

Dec. 21, 2010.

Steven Banks, The Legal Aid Society, New York (Robert C. Newman of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), for respondent.

ANDRIAS, J.P., SAXE, MOSKOWITZ, ACOSTA, FREEDMAN, JJ.

Order, Supreme Court, New York County (John Cataldo, J.), entered on or about November 4, 2008, which determined that, absent an article 78 proceeding, the Supreme Court did not have jurisdiction to review the determination of the Board of Examiners of Sex Offenders that defendant is required to register as a sex offender on the basis of an out-of-state conviction, and order, same court and Justice, entered on or about January 8, 2009, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The question of whether a person is required to register as a sex offender on the basis of an out-of-state conviction is determined by the Board of Examiners, and is not part of the classification proceeding conducted thereafter by the court; accordingly, a person seeking review of the Board's determination that he or she is obligated to register in the first place is required to bring an article 78 proceeding against the Board. The plain language of Correction Law § 168-k(2) dictates this result, and we agree with the other appellate courts that have reached this conclusion ( see Matter of Mandel, 293 A.D.2d 750, 751, 742 N.Y.S.2d 321 [2d Dept.2002], appeal dismissed 98 N.Y.2d 727, 749 N.Y.S.2d 476, 779 N.E.2d 187 [2002]; People v. Williams, 24 A.D.3d 894, 895, 805 N.Y.S.2d 191 [3d Dept.2005], lv. denied 6 N.Y.3d 710, 813 N.Y.S.2d 46, 846 N.E.2d 477 [2006]; People v. Carabello, 309 A.D.2d 1227, 1228, 765 N.Y.S.2d 724 [4th Dept.2003] ). This Court's decision in People v. Millan, 295 A.D.2d 267, 743 N.Y.S.2d 872 [2002] is not to the contrary, because the parties to that appeal did not litigate the present issue and we thus had no occasion to reach it ( see e.g. People v. Louree, 8 N.Y.3d 541, 546 n., 838 N.Y.S.2d 18, 869 N.E.2d 18 [2007] ). Defendant's policy arguments would be more appropriately addressed to the Legislature than to the courts.

Defendant did not preserve his claim that this interpretation of the statute leads to a deprivation of equal protection and due process. Even if we were to conclude that this claim presents the type of legal question that may be raised for the first time on this civil appeal ( see Chateau D'If Corp. v. City of New York, 219 A.D.2d 205, 209-210, 641 N.Y.S.2d 252 [1996], lv. denied 88 N.Y.2d 811, 649 N.Y.S.2d 379, 672 N.E.2d 605 [1996] ),we would reject it. There is a rational basis for the Legislature's allocation of the registration determination for in-state offenders to courts and for out-of-state offenders to the Board. New York courts can make the registration determinations for in-state offenders at the time of sentencing ( see People v. Hernandez, 93 N.Y.2d 261, 689...