People v. Matos
| Decision Date | 17 August 2022 |
| Docket Number | 2019–03845 |
| Citation | 172 N.Y.S.3d 740 |
| Parties | PEOPLE of State of New York, respondent, v. David MATOS, appellant. |
| Court | New York Supreme Court — Appellate Division |
Patricia Pazner, New York, NY (Anna Kou of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Anthea H. Bruffee of counsel), for respondent.
BETSY BARROS, J.P., REINALDO E. RIVERA, PAUL WOOTEN, DEBORAH A. DOWLING, JJ.
On the instant appeal, we address for the first time in this Court whether a defendant may challenge his or her certification as a sex offender under the Sex Offender Registration Act (Correction Law article 6–C; hereinafter SORA) on an appeal from an order designating the risk level. We answer that question in the negative and hold that such a challenge is properly made on an appeal from the judgment of conviction. Thus, the defendant's contention that his certification was unlawful because the crime he was convicted of is not a sex offense under Correction Law § 168–a(2) is not reviewable on this appeal.
On February 18, 2010, at approximately 3:30 p.m., the defendant, posing as a nurse, appeared at the residence of a first victim (hereinafter the first victim). He advised the first victim that he had reviewed her medical records and that, in order for her to continue to receive her medication, she would have to pay him money. He further stated that she would need to submit to a physical examination. The first victim laid on her bed. The defendant lifted her legs and placed both hands under her shirt, as if conducting a breast examination. The defendant then told her that he would also have to conduct a vaginal examination. The victim refused. The defendant proceeded to ask the first victim questions regarding her lifestyle and sexual activities. Additionally, he stated that he wanted to instruct her on "how to masturbate." The police viewed certain security video footage depicting the defendant exiting the first victim's residence.
On November 4, 2010, at approximately 12:30 p.m., the defendant, posing as an employee of the "Assistance/Medicaid" office, arrived at the residence of a second victim (hereinafter the second victim). Upon arriving at her residence, the defendant told the second victim that she needed to give him money. When she replied that she did not have any money, the defendant requested that the second victim provide him with her New York State benefit card and personal identification number, which she furnished to him. Thereafter, the defendant told the second victim that he needed to conduct a physical examination of her. After the second victim disrobed, the defendant placed his hands on her breasts, as if conducting a breast examination. He then proceeded to place latex gloves on his hands and inserted his fingers inside the second victim's vagina. He discarded the gloves. The defendant displayed a condom and told the second victim to go into the bathroom because he had to place his penis inside her vagina. The police were able to identify the defendant from DNA found on the latex gloves.
At the time that he committed the aforementioned offenses, the defendant was under parole supervision following convictions in 2005 of, inter alia, six counts of burglary in the second degree. Those 2005 convictions involved the defendant's impersonation of government personnel or employees of a home health-care agency in order to gain entry to the homes of those victims, many of whom were elderly. He demanded money, usually in the range of $70 to $100. On one occasion, he posed as a visiting nurse and told a home attendant that she had to submit to breast and vaginal examinations
or she would "not have a job."
With regard to the acts committed by the defendant against the two victims herein, the defendant was charged, under Kings County Indictment No. 2995/11, with attempted rape in the third degree ( Penal Law §§ 110.00, 130.25[3] ), sexual abuse in the third degree (two counts) (id. § 130.55), attempted sexual misconduct ( id. §§ 110.00, 130.20[1] ), attempted sexual abuse in the third degree ( id. §§ 110.00, 130.55 ), burglary in the second degree as a sexually motivated felony (id. §§ 140.25[2], 130.91), burglary in the third degree as a sexually motived felony (two counts) (id. §§ 140.20, 130.91), burglary in the second degree (two counts) (id. § 140.25[2]), burglary in the third degree (two counts) (id. § 140.20), grand larceny in the fourth degree (two counts) (id. § 155.30[4], [5]), criminal trespass in the second degree (two counts) (id. § 140.15), petit larceny (id. § 155.25), criminal impersonation in the second degree (two counts) (id. § 190.25[2]), scheme to defraud in the second degree (id. § 190.60[1]), attempted grand larceny in the fourth degree ( id. §§ 110.00, 155.30[5] ), attempted petit larceny ( id. §§ 110.00, 155.25 ), harassment in the second degree (two counts) (id. § 240.26[1]), and trespass (two counts) (id. § 140.05).
On November 30, 2012, the defendant entered a plea of guilty to one count of burglary in the second degree as a sexually motivated felony (id. §§ 140.25[2], 130.91), in full satisfaction of the indictment. He was later sentenced to a determinate term of imprisonment of 9 years, to be followed by a period of postrelease supervision of 15 years. It is not disputed that, at sentencing, the Supreme Court certified the defendant as a sex offender under SORA. The defendant did not appeal from the judgment.
On April 2, 2019, a SORA hearing was conducted. The People requested that the defendant be designated a level three sex offender based on a total risk factor score of 135. The defendant opposed the assessment of points under certain risk factors and requested a downward departure to a level two category. At the hearing, defense counsel did not challenge the defendant's certification as a sex offender.
In an order dated April 2, 2019, the Supreme Court designated the defendant a level three sex offender. The defendant now appeals from that order.
On appeal, the defendant contends that he was erroneously required to register as a sex offender because his conviction of burglary in the second degree as a sexually motivated felony is not a "[s]ex offense" under Correction Law § 168–a(2). He asserts that this issue is appropriately raised on this appeal. Alternatively, he argues that defense counsel was ineffective for failing to raise this issue at the SORA hearing. Notably, on the instant appeal, the defendant does not challenge the Supreme Court's assessment of points under any of the risk factors, the denial of his request for a downward departure from the presumptive risk level, or the level three sex offender designation.
The People counter that sex offender certification is part of the judgment of conviction and the defendant's contention that the crime of which he was convicted is not a "SORA-registrable" offense should have been raised on a direct appeal from the judgment. The People assert that such a challenge is not reviewable on this appeal from the order designating the defendant's SORA risk level.
For the reasons now discussed, we hold that the defendant's challenge to the legality of his sex offender certification is not reviewable on this appeal from an order designating the defendant's SORA risk level. Our analysis is guided by the express holdings of the Court of Appeals, this Court, and other appellate courts, as well as the statutory framework of SORA.
The stated purpose of SORA "is predominantly regulatory" (State Memo in Support, Bill Jacket, L 1995, ch 192 at 6; see People v. Stevens, 91 N.Y.2d 270, 274–275, 669 N.Y.S.2d 962, 692 N.E.2d 985 ; People v. Corr, ––– A.D.3d ––––, 170 N.Y.S.3d 612, 2022 N.Y. Slip Op. 04183 [2d Dept.] ; People v. Wells, 138 A.D.3d 947, 951, 30 N.Y.S.3d 198 ). "The Legislature's goals are to protect the public from the danger of recidivism posed by sex offenders, to assist the criminal justice system to identify, investigate, apprehend[,] and prosecute sex offenders, and to comply with the Federal Crime Control Act" ( People v. Stevens, 91 N.Y.2d at 275, 669 N.Y.S.2d 962, 692 N.E.2d 985 [internal quotation marks omitted]; see People v. Perez, 35 N.Y.3d 85, 87, 125 N.Y.S.3d 308, 149 N.E.3d 1 ; People v. Mingo, 12 N.Y.3d 563, 574, 883 N.Y.S.2d 154, 910 N.E.2d 983 ). Pursuant to Correction Law § 168–d(1)(a), the court shall certify that the person is a sex offender based upon his or her conviction of certain enumerated offenses set forth in Correction Law § 168–a(2) and (3), and shall include the certification in the order of commitment, if any, and the judgment of conviction (see People v. Parris, 153 A.D.3d 68, 77, 60 N.Y.S.3d 169 ; People v. Vere, 44 A.D.3d 690, 691, 843 N.Y.S.2d 378 ). Sex offender certification pursuant to Correction Law § 168–d(1) is distinct from a risk level determination (see Correction Law § 168–n ; People v. Smith, 60 A.D.3d 580, 581, 876 N.Y.S.2d 372 ).
More than two decades ago, in ( People v. Hernandez, 93 N.Y.2d 261, 267, 689 N.Y.S.2d 695, 711 N.E.2d 972 ), the Court of Appeals concluded that certification as a sex offender is appealable and reviewable as part of the judgment of conviction. Therein, the Court of Appeals explained that certification is "rendered in open court, together with other elements of disposition" and "form[s] an integral part of the conviction and sentencing" ( id. at 267, 689 N.Y.S.2d 695, 711 N.E.2d 972 ). The Court of Appeals indicated that SORA certification is effected by operation of law upon "conviction, " is pronounced at sentencing, and must be included in the order of commitment for those defendants sentenced to prison, "making the SORA certification an inescapable part of the conviction" and "definitionally incorporated within the judgment itself" ( id...
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People v. Marxuach
...contention is not reviewable on the instant appeal from an order designating the defendant's risk level under SORA (see People v. Matos, 209 A.D.3d 19, 172 N.Y.S.3d 740 ). Such a challenge is properly made on an appeal from the judgment of conviction (see id. ). Accordingly, we affirm the o......