| People v Cintron |
| 2007 NY Slip Op 09919 [46 AD3d 353] |
| December 18, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Eliezer Cintron, Appellant. |
—[*1] Robert J. Johnson, District Attorney, Bronx (Noah J. Chamoy of counsel), forrespondent.
Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about August 4,2006, which adjudicated defendant a level three sex offender under the Sex OffenderRegistration Act (Correction Law art 6-C), unanimously affirmed, without costs.
We agree with the motion court (13 Misc 3d 833 [2006]), as well as the Second Department(People v Taylor, 42 AD3d 13[2007], appeal dismissed 9 NY3d 887 [2007]), that the provision requiring personsconvicted of certain nonsexual abduction-related crimes to register as sex offenders isconstitutional. Furthermore, the statute is constitutional as applied to this defendant (see People v Cassano, 34 AD3d239 [2006], lv denied 8 NY3d 804 [2007]).
Defendant did not preserve his claim that he does not qualify as a sex offender because, onthe effective date of the statute in 1996, he was not incarcerated or on parole or probation for anoffense subject to registration. Even if we were to conclude that this claim presents a question oflaw that defendant may raise for the first time on this civil appeal (see Chateau D' If Corp. vCity of New York, 219 AD2d 205, 209-210 [1996], lv denied 88 NY2d 811 [1996]),we would find that since defendant's unlawful imprisonment sentence merged with his longerconcurrent sentence for first-degree drug possession (see People v Ramirez, 89 NY2d444, 450 [1996]), he was still incarcerated for an offense covered by the Sex Offender RegistrationAct on its effective date.[*2]
The court properly exercised its discretion in declining togrant a downward departure from defendant's presumptive risk level. Concur—Tom, J.P.,Mazzarelli, Saxe, Nardelli and Kavanagh, JJ. [See 13 Misc 3d 833.]