People v. Stevens

• Decision Date: 19 February 1998
• Citation: 692 N.E.2d 985,91 N.Y.2d 270,669 N.Y.S.2d 962
• Parties: , 692 N.E.2d 985, 1998 N.Y. Slip Op. 1470 The PEOPLE of the State of New York, Respondent, v. Darryl STEVENS, Appellant. The PEOPLE of the State of New York, Respondent, v. Bernard SMITH, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 962

669 N.Y.S.2d 962

91 N.Y.2d 270, 692 N.E.2d 985, 1998

N.Y. Slip Op. 1470

The PEOPLE of the State of New York, Respondent, v. Darryl STEVENS, Appellant.

The PEOPLE of the State of New York, Respondent, v. Bernard SMITH, Appellant.

Court of Appeals of New York.

Feb. 19, 1998.

Anna M. Perry and Robert C. Mitchell, Riverhead, for appellant in the first and second above-entitled actions.

James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Steven A. Hovani, of counsel), for respondent in the first and second above-entitled actions.

Dennis C. Vacco, Attorney General, Albany (Andrea Oser, Barbara G. Billet and Peter H. Schiff, of counsel), in his statutory capacity under Executive Law § 71 in the first and second above-entitled actions.

OPINION OF THE COURT

BELLACOSA, Judge.

This Court must resolve whether a convicted sex offender has a discrete right to appeal a "risk level determination," pursuant to CPL 460.20. These are post-service-of-sentence classifications under Megan's Law. We affirm the orders of the Appellate Division dismissing the respective appeals to that Court.

Appellants are sex offenders who were convicted and sentenced prior to the enactment of New York's Sex Offender Registration Act. As prescribed by the Act, when a convicted inmate is about to be released from incarceration, the original sentencing court has the responsibility to determine whether the offender is a "sexually violent predator" (see, Correction Law § 168-a[7]; § 168-n). That determination carries a level three notification classification based on high risk of repeat offense (see, Correction Law § 168-l [6][c] ). A released, previously convicted sex perpetrator, who is determined to fit within this classification, is then required to comply with the Act's registration and notification requirements. That is the only category and circumstance involved in the matters now before us.

The two released offenders in these matters appeal by leave of Judges of this Court pursuant to CPL 460.20. The Appellate Division orders dismissed the initial appeals to that Court from purported "resentencings" on the ground that no statutory authorization existed upon which appeals in a direct criminal procedural track from these determinations may be predicated.

People v. Stevens

In 1990, Darryl Stevens was charged with two counts of rape in the first degree and two counts of sexual abuse in the first degree. He pleaded guilty to one count of attempted rape in the first degree and was sentenced to 1 1/2 to 4 1/2 years' imprisonment. He was first paroled in 1993, but a burglary conviction resulted in reincarceration. He was released again on April 19, 1996.

On June 12, 1996, a Megan's Law risk level determination hearing was conducted before the County Court of Suffolk County. Upon a review of the record and the recommendation of the Board of Examiners of Sex Offenders, County Court designated Stevens as a level three sexually violent predator--the highest and most serious statutory classification.

Stevens filed a notice of appeal to the Appellate Division from this purported "resentencing." The argument there was that the 1996 determination imposed additional conditions upon the original sentence of incarceration in 1990, i.e., postrelease registration and notification requirements.

The Appellate Division granted the People's motion to dismiss the appeal. It held that the "determination is not an amended sentence or a resentence * * * and therefore is not appealable pursuant to CPL 450.30(3)" (235 A.D.2d 440, 652 N.Y.S.2d 305). Consequently, the Court dismissed the appeal " '[s]ince there is no statutory provision upon which an appeal [in that CPL track] * * * may be predicated' " (id., at 441, 652 N.Y.S.2d 305, quoting People v. De Jesus, 54 N.Y.2d 447, 449, 446 N.Y.S.2d 201, 430 N.E.2d 1254).

People v. Smith

On November 26, 1993, Bernard Smith was charged with multiple counts of sexual abuse, one count of assault in the second degree and one count of burglary in the third degree. On December 22, 1993, Smith pleaded guilty to two counts of sexual abuse in the first degree and was sentenced to 1 1/2 to 4 1/2 years' imprisonment.

Upon his release, the County Court of Suffolk County designated him a level three sexually violent predator. When Smith tried to appeal the classification to the Appellate Division, it dismissed the appeal on the ground that "the determination is not appealable;" it cross-referenced People v. Stevens, 240 A.D.2d ----, --- N.Y.S.2d ---- [2d Dept, June 3, 1997].

I.

Appellants argue that the Appellate Division erred in dismissing their appeals without review of the merits. They acknowledge that neither the Act (Megan's Law, L.1995, ch. 192; Correction Law art. 6-C) nor the Criminal Procedure Law (CPL art. 450) expressly authorizes a criminal track appeal from these risk level determinations in their circumstances. They propose, however, that a risk level determination constitutes a final disposition of the original criminal sentence and that a prescribed right of appeal thus becomes available to the Appellate Division through that characterization. Citing People v. Pollenz, 67 N.Y.2d 264, 502 N.Y.S.2d 417, 493 N.E.2d 541, they add to their theory that the Legislature cannot curtail appellate jurisdiction as of right from final judgments or orders in criminal actions or special proceedings. Thus, they claim nothing in Megan's Law expressly or impliedly restricts their right to appeal, nor can the new law effect that kind of limitation.

Megan's Law became effective in New York on January 21, 1996 (see, L.1995, ch. 192, § 3). The stated purpose of New York's "Sex Offender Registration Act" (Correction Law, art. 6-C, § 168) is "predominantly regulatory" (Bill Jacket, L.1995, ch. 192, Senate Mem. in Support, at 6; see, Doe v. Pataki, 2nd Cir., 120 F.3d 1263, 1276-1277; Greenberg, New York Criminal Law § 10.1, at 221). 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 (Legislative Findings and Intent L.1995, ch. 192, § 1, McKinney's Cons. Laws of N.Y., Book 10B, Correction Law § 168, 1997-1998 Pocket Part, at 83).

To achieve these declared and promulgated objectives, the Act details a registration and notification system for individuals convicted of sex offenses based on a three-tier classification regime. Conviction of any of the enumerated sex offenses automatically classifies an individual as a "sex offender" (see, Correction Law § 168-d[1]; see also, §§ 168-a[1], [2] ). All "sex offenders" must comply with the mandatory minimal registration and notification requirements of the statute (see, Correction Law §§ 168-f, 168-l [6]; § 168-n).

A "sexually violent predator" is defined as someone who has been convicted of an enumerated "sexually violent offense" or "suffers from a mental abnormality that makes such a person likely to engage in predatory sexual conduct" (Correction Law § 168-a[7] ). Individuals who are sexually violent predators, with a high risk of reoffense that threatens public safety, are subject to the widest notification network as a result of this level three designation (see, Correction Law § 168-l [6][c]; Bonacquist, Supplementary Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 10B, Correction Law art. 6-C, 1997-1998 Pocket Part, at 81-82).

The Act also creates a Board of Examiners of Sex Offenders to "develop guidelines and procedures to assess the risk of a repeat offense by such sex offender and the threat posed to the public safety" (Correction Law § 168-l [5] ). The guidelines encompass nine categories that include mental abnormalities or illness, substance abuse history, criminal history and indicia of risk and reoffense, treatment, behavior and victim impact statements (see, id.). The Board submits its recommendation to the sentencing court "providing for one of * * * three levels of notification" commensurate with the risk of reoffense (see, Correction Law § 168-l [6]; Bonacquist, Supplementary Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 10B, Correction Law art. 6-C, 1997-1998 Pocket Part, at 81-82).

For the fixed number of sex offenders convicted before the effective date of the Act, but who achieved parole or probation status by the effective date, the Division of Parole or Probation makes the risk determination (see, Correction Law § 168-g[1] ).

The court that originally sentenced a convicted offender is ordinarily charged with classifying an individual as a "sex offender" or a "sexually violent predator" and directing the appropriate level of notification. The determination is based upon the assessed risk of reoffense rooted in a review of the record and the Board's recommendation (see, Correction Law § 168-n). The court may also consider statements and materials submitted by the victim and the offender (see, Correction Law § 168-n[3] ). The sex offender additionally is entitled to appear and be heard and to have appointed counsel in connection with the rendition of a determination (id.).

A sex offender may petition the sentencing court for relief from the duty to register (Correction Law §§ 168-o, 168-l [7] ). The offender's petition, an updated report from the Board of Examiners and consultation with the victim constitute the record for the court's review and determination of that avenue of redress and review.

II.

Whatever else the determination may be or be classified as, we are satisfied that it and its registration and notification requirements under the Act, in the pertinent category of these offenders' situations, are not a traditional, technical or integral part of a sentence that somehow relates back to or becomes incorporated into the antecedent judgment of conviction (see, Legislative Findings and...