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CERTIFICATION AS A SEX OFFENDER OCCURS UPON CONVICTION AND IS NOT REVIEWABLE IN A SORA RISK ASSESSMENT PROCEEDING (FIRST DEPT).

The First Department determined whether defendant should have been adjudicated a sex offender was not reviewable in a SORA risk assessment proceeding. Defendant was convicted of unlawful surveillance for making cell phone videos under women's dresses on the subway. Pursuant to the statute, unlawful surveillance is a sex offense, However the defendant can make a motion asking the court to find registration as a sex offender too harsh under the particular circumstances:

We agree with the People that the statute does not give a SORA court the power to determine a motion under Correction Law § 168-a(2)(e). While we find it significant that the provision assigns the duty of ruling on the motion to “the trial court” — notably the only time that phrase is used in SORA's numerous sections — we do not consider the use of the phrase to be a sufficient basis for our interpretation, because it is arguably malleable enough not to be limited to the court that actually presided over the defendant's trial. However, Correction Law § 168-d(1)(a), describing the “duties of the court,” provides a more definite indication of statutory intent, by way of language that clearly contemplates that certification as a sex offender occurs “upon conviction” and after consideration of any motion pursuant to Correction Law § 168-a(2)(e). Nothing else in the statutory scheme contradicts this understanding. People v Lema, 2018 NY Slip Op 00005, First Dept 1-2-18

CRIMINAL LAW (CERTIFICATION AS A SEX OFFENDER OCCURS UPON CONVICTION AND IS NOT REVIEWABLE IN A SORA RISK ASSESSMENT PROCEEDING (FIRST DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (CERTIFICATION AS A SEX OFFENDER OCCURS UPON CONVICTION AND IS NOT REVIEWABLE IN A SORA RISK ASSESSMENT PROCEEDING (FIRST DEPT))/SEX OFFENDER (CERTIFICATION AS A SEX OFFENDER OCCURS UPON CONVICTION AND IS NOT REVIEWABLE IN A SORA RISK ASSESSMENT PROCEEDING (FIRST DEPT))

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DEFENDANT’S CONVICTION UPHELD DESPITE INVALID WAIVER OF THE RIGHT TO COUNSEL... EXPERT EVIDENCE THAT A SAFETY DEVICE WAS NOT NECESSARY IN THIS FALLING OBJECTS...