| People v Gregory |
| 2010 NY Slip Op 02608 [71 AD3d 1559] |
| March 26, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ThomasGregory, Appellant. |
—[*1] Thomas Gregory, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), forrespondent.
Appeal from an order of the Supreme Court, Monroe County (Frank P. Geraci, Jr., A.J.),entered February 21, 2008. The order determined that defendant is a level one risk pursuant tothe Sex Offender Registration Act.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and defendant's risk level determination pursuant to the Sex Offender RegistrationAct is vacated.
Memorandum: On appeal from an order determining him to be a level one risk pursuant tothe Sex Offender Registration Act (SORA) (Correction Law § 168 et seq.),defendant contends in his main brief and pro se supplemental brief that the classificationproceeding was time-barred. We agree.
Defendant was convicted of sexual abuse in the first degree (Penal Law § 130.65 [3])in February 1991 and he received a sentence of probation of five years, which expired inFebruary 1996. SORA became effective in January 1996, and thus defendant was a sex offenderrequired to register under SORA (see Correction Law § 168-g [2]; Doe vPataki, 120 F3d 1263 [1997], cert denied 522 US 1122 [1998]). It was not until June13, 2007, however, that defendant was notified that he was required to register, and he wasinstructed to appear in Supreme Court.
We reject defendant's contention that the six-year statute of limitations in CPLR 213 appliesto this SORA classification proceeding. Article 6-C of the Correction Law has its own timelimits for SORA classification proceedings, and thus CPLR 213 does not apply (seeCPLR 213 [1]). We conclude, however, that vacatur of defendant's risk level determination isappropriate. Although Correction Law § 168-l (8) expressly provides that a failureby the court "to render a determination within the time period specified in [article 6-C] shall notaffect the obligation of the sex offender to register," we conclude that the 11-year delay is " 'sooutrageously arbitrary as to constitute [a] gross abuse of governmental authority' " (People vWilkes, 53 AD3d 1073, 1074 [2008], lv denied 11 NY3d 710 [2008]; cf. Peoplev Sgroi, 22 Misc 3d 902, 905-[*2]906 [2008]). We thereforereverse the order and vacate defendant's risk level determination.
Based on our determination, we see no need to address the remaining contention ofdefendant in his pro se supplemental brief. Present—Scudder, P.J., Centra, Carni and Pine,JJ.