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AT THE TIME DEFENDANT COMMITTED THE OFFENSE IN 2007, IT WAS NOT A REGISTRABLE OFFENSE UNDER THE SEX OFFENDER REGISTRATION ACT; THEREFORE DEFENDANT’S MOTION TO SEAL THE RECORD SHOULD NOT HAVE BEEN SUMMARILY DENIED; MATTER REMITTED FOR A HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the crime for which defendant was convicted, at the time of its commission in 2007, was not a registrable offense under the Sex Offender Registration Act (SORA). Therefore defendant’s motion to seal the record should not have been summarily denied. The matter was remitted for a hearing:

… [A]t the time of the defendant’s conviction for attempted promoting prostitution in the third degree (Penal Law §§ 110.00, 230.25), the definition of “sex offense” in Correction Law § 168-a(2) did not include convictions of an attempt to commit Penal Law § 230.25 … . Further, the defendant has never been required to register under SORA for this conviction. Accordingly, under the plain language of the statute, the defendant has not been not [sic] convicted of “an offense for which registration as a sex offender is required pursuant to article six-C of the correction law” (CPL 160.59[1][a] …). Thus, the Supreme Court should not have determined that the defendant’s conviction falls into the category of excluded offenses … . Likewise, although CPL 160.59(3)(a) provides that the reviewing court must summarily deny the defendant’s application when, inter alia, “the defendant is required to register as a sex offender pursuant to article six-C of the correction law,” here, the defendant is not required to do so.

As the defendant’s motion was not subject to mandatory denial under CPL 160.59(3) and the district attorney opposed the defendant’s motion, a hearing on the defendant’s motion was required … . People v Miranda, 2022 NY Slip Op 03009, Second Dept 5-4-22

Practice Point: If an offense is now a registrable offense pursuant to the Sex Offender Registration Act, but was not a registrable offense when committed (here in 2007), a defendant’s motion to seal the record cannot be summarily denied. The motion may still be denied after a hearing, however.

 

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