You are here: / / BURGLARY AS A SEXUALLY MOTIVATED OFFENSE FIRST DEGREE IS NOT A REGISTERABLE...
, ,

BURGLARY AS A SEXUALLY MOTIVATED OFFENSE FIRST DEGREE IS NOT A REGISTERABLE OFFENSE UNDER SORA; A SEX OFFENDER CLASSIFICATION IS APPEALABLE WHEN THE ERROR IS NOT PRESERVED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice LaSalle, determined that burglary as a sexually motivated felony first degree (Penal Law 140.30[2]) is not a registerable offense under SORA, the result of an apparently unintended omission from the Correction Law. Defendant had attempted to rape the victim after breaking into her house. The court noted that a sex offender classification is appealable even when the alleged error is not preserved:

… [W]hen looking first at the statutory text of Correction Law § 168-a(2)(a), we find that the language employed is clear and unambiguous. As written, subparagraph (iii) of section 168-a(2)(a) specifically defines a sex offense as “a conviction of or a conviction for an attempt to commit any provisions of the foregoing sections committed or attempted . . . as a sexually motivated felony defined in section 130.91 of such law.” Thus, as the defendant contends, according to the language of the statute as amended, burglary in the first degree as a sexually motivated felony is not a registerable sex offense under SORA. While this may not have been the intent of the Legislature, the omission of a critical grammatical signpost or a parenthetical number preceding “as a sexually motivated felony” clearly limits the qualifying sexually motivated felony offenses only to those enumerated in subparagraphs (i) and (ii) … . “The maxim expressio unius est exclusio alterius is applied in the construction of the statutes, so that where a law expressly describes a particular act, thing or person to which it shall apply,  an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” … . People v Buyund, 2019 NY Slip Op 08207, Second Dept 11-13-19

 

You might also like
Criteria for Award of Support for Education
FORECLOSURE ACTION ON THE ENTIRE DEBT TIME-BARRED; QUESTION OF FACT WHETHER THE DEBT WAS DE-ACCELERATED; IF SO, ONLY THOSE INSTALLMENT PAYMENTS DUE WITHIN SIX YEARS OF THE START OF THE FORECLOSURE ACTION ARE RECOVERABLE (SECOND DEPT).
REAR MOST DRIVER RAISED A QUESTION OF FACT ABOUT WHETHER THE DRIVER IN FRONT STOPPED SUDDENLY AND DID NOT SIGNAL (SECOND DEPT).
Sexual Offense Convictions Reversed as Against the Weight of the Evidence—Too Many Inconsistencies and Contradictions in Proof
THE PEOPLE PRESENTED INSUFFICIENT PROOF ON RISK FACTORS 2 AND 4, REQUIRING A 45 POINT REDUCTION (SECOND DEPT).
DEFENSE COUNSEL DID NOT OBJECT TO AN ACCOMPLICE’S TESTIMONY ABOUT THE GUILTY PLEA ENTERED BY A NON-TESTIFYING PARTICIPANT IN THE SHOOTING (DEFENDANT WAS THEREBY DEPRIVED OF THE RIGHT TO CONFRONT A WITNESS AGAINST HIM); DEFENSE COUNSEL DID NOT REQUEST THE ACCOMPLICE JURY INSTRUCTION (WHICH REQUIRES CORROBORATION OF THE ACCOMPLICE’S TESTIMONY) OR THE MISSING WITNESS JURY INSTRUCTION; NEW TRIAL ORDERED (SECOND DEPT). ​
THE MANNER IN WHICH THE FIREFIGHTER’S GENERAL MUNICIPAL LAW 207-A INJURY CLAIM SHOULD BE PROCESSED IS ARBITRABLE BECAUSE THE ISSUE IS ADDRESSED IN THE COLLECTIVE BARGANING AGREEMENT (CBA); THE PETITION TO STAY ARBITRATION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
IN THIS STREET STOP CASE, THE POLICE OFFICER’S CLAIM TO HAVE SEEN THE OUTLINE OF A GUN UNDER DEFENDANT’S SWEAT PANTS WAS DEEMED INCREDIBLE AS A MATTER OF LAW; THE PEOPLE THEREFORE DID NOT MEET THEIR “BURDEN OF GOING FORWARD” AT THE SUPPRESSION HEARING; THE GUN SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

BANKRUPTCY TRUSTEE PROPERLY SUBSTITUTED FOR PLAINTIFF IN A PERSONAL INJURY ACTION,... DEFENDANT WAS NOT INFORMED THAT THE SENTENCE WOULD INCLUDE POSTRELEASE SUPERVISION...