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DEFENDANT’S CHALLENGE TO CERTIFICATION AS A SEX OFFENDER WAS FIRST RAISED IN THE APPELLATE DIVISION AND WAS NOT PRESERVED FOR CONSIDERATION BY THE COURT OF APPEALS; THE ILLEGAL SENTENCE EXCEPTION TO THE PRESERVATION REQUIREMENT DOES NOT APPLY BECAUSE SORA CERTIFICATION IS NOT PART OF THE SENTENCE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, determined the challenge to the legality of defendant’s certification as a sex offender, first raised on appeal to the Appellate Division, was not preserved and the illegal sentence exception to the preservation requirement did not apply:

Defendant thereafter pleaded guilty to … burglary in the first degree as a sexually motivated felony … . … [T]he court … advised defendant that he would have to register pursuant to SORA upon his release from prison. * * *

On appeal to the Appellate Division, defendant argued for the first time that his certification as a sex offender was unlawful because his crime of conviction is not an enumerated registerable sex offense under Correction Law § 168-a (2) (a). * * *

The Appellate Division agreed with defendant that under the “clear and unambiguous” language of Correction Law § 168-a (2) (a) “burglary in the first degree as a sexually motivated felony is not a registerable sex offense under SORA” … . * * *

“We have recognized ‘a narrow exception to the preservation rule’ where a court exceeds its powers and imposes a sentence that is illegal in a respect that is readily discernible from the trial record” … . However, “not all claims arising during a sentencing proceeding fall within the exception” … . * * *

… [S]ex offender certification is effectuated by the court pursuant to Correction Law § 168-d and is not addressed in either the Criminal Procedure Law or Title E of the Penal Law. … SORA certification is not part of a sentence and the illegal sentence exception to the preservation requirement does not apply to challenges to certification as a sex offender. People v Buyund, 2021 NY Slip Op 06529, CtApp 11-23-21

 

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