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HERE DEFENDANT, WHO PLED GUILTY TO BURGLARY AS A SEXUALLY MOTIVATED FELONY, ATTEMPTED TO CHALLENGE HIS CERTIFICATION AS A SEX OFFENDER, PRONOUNCED AT SENTENCING, IN THE SORA RISK-LEVEL ASSESSMENT PROCEEDING; THE SEX OFFENDER CERTIFICATION WAS DEEMED TO BE PART OF THE JUDGMENT OF CONVICTION WHICH CAN ONLY BE CHALLENGED ON DIRECT APPEAL (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Rivera, determined that the defendant could not challenge his certification as a sex offender at the SORA risk-level-assessment proceeding. The sex-offender certification is part of the judgment of conviction which must be challenged on direct appeal. Here the defendant pled guilty to burglary as a sexually motivated felony and was designated a sex offender at sentencing.

… [W]e take this opportunity to pronounce that where, as here, a defendant challenges certification on the ground that the underlying New York conviction is for an offense which does not require registration under SORA, the issue is one which is properly raised on a direct appeal from the judgment of conviction, not on an appeal from an order designating his or her sex offender risk level…. . People v Matos, 2022 NY Slip Op 04984, Second Dept 8-17-22

Practice Point: Here the defendant was certified as a sex offender at sentencing for burglary as a sexually motivated felony. He attempted to challenge the certification at the SORA risk-level-assessment proceeding. The Second Department, like the First Department, held the sex offender certification was part of the judgment of conviction and can only be challenged by direct appeal.

 

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