People v. Mcgarghan
| Decision Date | 05 April 2011 |
| Citation | 2011 N.Y. Slip Op. 02732,920 N.Y.S.2d 329,83 A.D.3d 422 |
| Parties | The PEOPLE of the State of New York, Respondent,v.Brian McGARGHAN, Defendant–Appellant. |
| Court | New York Supreme Court — Appellate Division |
83 A.D.3d 422
920 N.Y.S.2d 329
2011 N.Y. Slip Op. 02732
The PEOPLE of the State of New York, Respondent,
v.
Brian McGARGHAN, Defendant–Appellant.
Supreme Court, Appellate Division, First Department, New York.
April 5, 2011.
[920 N.Y.S.2d 330]
Treyvus & Konoski, P.C., New York (Bryan Konoski of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), for respondent.MAZZARELLI, J.P., SWEENY, RENWICK, RICHTER, MANZANET–DANIELS, JJ.
[83 A.D.3d 422] Order, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), entered on or about December 7, 2007, which directed defendant to register as a level-one sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C) for 20 years with credit for time already registered, and bringing up for review a prior order, same court and Justice, entered on or about September 5, 2007, 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, unanimously affirmed, without costs.
The court correctly determined that an article 78 proceeding against the Board of Examiners is the only means by which defendant could have sought review of the Board's determination that his Vermont conviction subjects him to the requirement of registration in New York ( see People v. Liden, 79 A.D.3d 598, 913 N.Y.S.2d 200 [2010] ). This conclusion is consistent with the Court of Appeals decision in North v. Board of Examiners, 8 N.Y.3d 745, 840 N.Y.S.2d 307, 871 N.E.2d 1133 [2007] ), which held that “SORA is not a penal statute and the regulation requirement is not a criminal sentence” ( id. at 752, 840 N.Y.S.2d 307, 871 N.E.2d 1133). Defendant raises several constitutional challenges to Correction Law § 168–a(2)(d)(ii), which subjects a sex offender to registration requirements if he or she was convicted of “a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred.” To the extent defendant is claiming it is unconstitutional to require him to register in New York at all, his arguments in that regard are not properly before this Court, because “a person seeking review of the Board's determination that he or she is obligated to register in the first place is required to...
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