You are here: / / DEFENDANT CANNOT APPEAL THE DENIAL OF HIS MOTION TO DISMISS THE SORA RISK-LEVEL...
, , , ,

DEFENDANT CANNOT APPEAL THE DENIAL OF HIS MOTION TO DISMISS THE SORA RISK-LEVEL PROCEEDING; HE MUST FIRST BE ADJUDICATED BY THE SORA COURT AND MAY SUBSEQUENTLY APPEAL REQUESTING AN ANNULMENT (FIRST DEPT). ​

The First Department, in full-fledged opinion by Judge Pitt-Burke, determined the defendant could not appeal an interlocutory order which denied his motion to dismiss the SORA proceeding. Defendant had been convicted of a federal offense and argued the Penal Law did not criminalize the use of morphed images which did not depict actual sexual conduct by a child. The First Department held the defendant must go through with the SORA hearing and subsequently make this argument on appeal:

By its plain language, Correction Law § 168-n (3) only permits an appeal “as of right” from the SORA court’s risk level determination order. To find otherwise would be to ignore the legislative intent of the statutory language … . Namely, the procedural safeguards afforded to defendant in Correction Law § 168-n (3) require the SORA court to conduct a risk assessment hearing before it renders an order requiring him to register as a sex offender in New York and assigns him a risk level designation. Until a hearing is held and a determination made, the defendant’s liberty interest as related to the SORA proceeding has not yet been adjudicated (see Correction Law § 168-n [3]). …

Under to CPLR 5701 (a) (2) (v), “[a]n appeal may be taken to the appellate division as of right . . . from an order . . . where the motion it decided was made upon notice and it . . . affects a substantial right.” Even assuming defendant’s interpretation of Correction Law § 168-n (3) is correct, the interlocutory order appealed from does not require defendant to register as a sex offender. In fact, the very procedural safeguards noted above prevent the SORA court from issuing such an order without a hearing. People v Lewis, 2024 NY Slip Op 00248, First Dept 1-18-24

Practice Point: Defendant could not appeal the denial of his motion to dismiss the SORA risk-level proceeding before it was conducted. Defendant contended the federal offense of which he was convicted involved morphed images that did not depict actual sexual conduct by a child, a circumstance, he argued, not covered by the New York Penal Law.

 

You might also like
A RETROCESSIONAL INSURER WHICH PAID OUT A SETTLEMENT ON BEHALF OF THE INSURED IN THE UNDERLYING LABOR LAW 240(1) LADDER-FALL CASE, IS ENTITLED TO BRING A LEGAL MALPRACTICE ACTION AGAINST THE LAWYERS FOR THE INSURED (FIRST DEPT).
QUESTION OF FACT WHETHER THE DEFENDANT’S DOUBLE-PARKED CAR WAS A PROXIMATE CAUSE OF THE ACCIDENT; PLAINTIFF’S DECEDENT, A BICYCLIST, WAS STRUCK BY A TRUCK WHEN HE ATTEMPTED TO GO AROUND DEFENDANT’S DOUBLE-PARKED CAR (FIRST DEPT). ​
A DECEASED PARTY’S ADMISSIONS ARE NOT HEARSAY AS AGAINST THAT PARTY’S ESTATE AND SUPPORT THE PETITIONER-ESTATE’S CONSTRUCTIVE TRUST CLAIM; THE ATTORNEY FOR THE RESPONDENT ESTATE WAS PRESENT DURING DISCUSSIONS AT THE HEART OF THE CONSTRUCTIVE TRUST CLAIM AND MUST BE DISQUALIFIED UNDER THE ADVOCATE-WITNESS RULE (FIRST DEPT). ​
INADMISSIBLE TESTIMONIAL HEARSAY, PROSECUTORIAL MISCONDUCT, AND JUDGE’S ACTIONS TO COERCE THE JURY TO REACH A VERDICT DEPRIVED DEFENDANT OF A FAIR TRIAL.
STRIKING DEFENDANTS’ ANSWERS WAS AN APPROPRIATE REMEDY FOR SPOLIATION OF EVIDENCE.
SPEED OF PLAINTIFF BICYCLIST RAISED A QUESTION OF FACT RE HIS COMPARATIVE NEGLIGENCE.
IN A TRESPASS INVESTIGATION, DETAINING DEFENDANT AND RETAINING HIS ID TO CHECK WHETHER HAD, AS HE CLAIMED, VISITED HIS GIRLFRIEND AT A SPECIFIED APARTMENT IN THE COMPLEX WAS NOT A SEIZURE.
Retainer Agreement in Divorce Action Which Addressed Only Work “Up To” Trial Did Not Allow Recovery of Attorney’s Fees for Trial​

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

DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS GUILTY PLEA;... PLAINTIFF DID NOT CITE A VIOLATION OF ANY INDUSTRIAL CODE PROVISION IN THE COMPLAINT...