Smith v. Devane

• Decision Date: 08 April 2010
• Citation: 898 N.Y.S.2d 702,73 A.D.3d 179
• Parties: In the Matter of Karlos SMITH, Appellant, v. Elizabeth M. DEVANE, as Chairperson of the New York State Board of Examiners of Sex Offenders, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 702
73 A.D.3d 179

In the Matter of Karlos SMITH, Appellant,
v.
Elizabeth M. DEVANE, as Chairperson of the New York State Board of Examiners of Sex Offenders, et al., Respondents.

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

April 8, 2010.

898 N.Y.S.2d 702

Tilem & Campbell, P.C., White Plains (John Campbell of counsel), for appellant.

Andrew M. Cuomo, Attorney General, Albany (Robert M. Goldfarb of counsel), for respondents.

Before: SPAIN, J.P., ROSE, KAVANAGH, STEIN and EGAN JR., JJ.

SPAIN, J.P.

Appeal from a judgment of the Supreme Court (Connolly, J.), entered January 16, 2009 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to, among other things, review a determination of respondent Board of Examiners of Sex Offenders requiring petitioner to register as a sex offender.

73 A.D.3d 180

In 1994, in Texas District Court, Victoria County, petitioner, then a resident of Texas, entered a guilty plea as charged in an indictment to first degree aggravated sexual assault of a child, a felony ( see Tex. Penal Code § 22.021), stemming from charges he subjected a 10-year-old relative to sexual contact on several occasions. The Texas court, acting in its discretion under chapter 42 of the Texas Code of Criminal Procedure, imposed a "deferred adjudication" of guilt, suspended imposition of a prison sentence, and placed petitioner under the maximum 10-year term of community supervision, akin to probation, with 26 terms and conditions, and community service ( see Tex. Code Crim. Proc. art. 42.12, §§ 3, 5). As a result of the plea, under Texas law, he is required to annually register

73 A.D.3d 181

as a sex offender, for

898 N.Y.S.2d 703

life, in Texas ( see Tex. Code Crim. Proc. art. 62. 001[5][A] ).

After petitioner moved to New York, respondent Board of Examiners of Sex Offenders (hereinafter Board) notified him by letter dated May 1, 2008 that he was required to register in New York under the Sex Offender Registration Act ( see Correction Law art. 6-C [hereinafter SORA] ) based upon that Texas felony sex offense for which he was required to register as a sex offender in that jurisdiction ( see Correction Law § 168-a[2][d][ii] ).¹ Additionally, respondent Division of Criminal Justice Services (hereinafter DCJS) notified petitioner by letter dated May 14, 2008 that he was also required to register any Internet accounts (with service providers) belonging to him and any e-mail addresses and screen names used by him for Internet chats, social networking or instant messaging ( see Correction Law § 168-b [1] [a] ). In June 2008, the Board completed a risk level assessment of petitioner, and made a risk level recommendation ² to the court in New York County, the county of petitioner's residence ( see Correction Law § 168-k[2] ).

Petitioner commenced this CPLR article 78 proceeding in Albany County seeking, among other things, reversal of the Board's determination that he is required to register as a sex offender in this state and of DCJS's Internet access disclosure directive.³ Supreme Court held that the Board had properly determined that petitioner is a sex offender required to register under SORA, and dismissed the petition. Petitioner now appeals.

Pursuant to Correction Law § 168-a(2), as amended in 1999 ( see L. 1999, ch. 453), certain defendants who reside in this

73 A.D.3d 182

state and were convicted of sex offenses in other jurisdictions must register as sex offenders in New York ( see People v. Kennedy, 7 N.Y.3d 87, 89, 817 N.Y.S.2d 614, 850 N.E.2d 661 [2006]; see also Matter of North v. Board of Examiners of Sex Offenders of State of N.Y., 8 N.Y.3d 745, 749, 840 N.Y.S.2d 307, 871 N.E.2d 1133 [2007] ). As relevant here, that section provides that a registerable sex offense includes "a conviction of ... (ii) a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the convictions occurred" (Correction Law § 168-a[2] [d][ii]; see People v. Mann, 52 A.D.3d 884, 885, 859 N.Y.S.2d 278 [2008] ). Petitioner's principal contention is that the deferred adjudication he received in Texas upon his guilty plea is not a "conviction" under Texas law ⁴ and, thus, while he is

898 N.Y.S.2d 704

concededly required to register as a sex offender for life in that jurisdiction, he is not required to register in New York under Correction Law § 168-a(2)(d)(ii). We find this argument untenable.

While SORA does not define "conviction," it is appropriate to look to CPL 1.20(13), which unequivocally provides that a conviction includes "the entry of a plea of guilty" to an...