| People v Liden |
| 2010 NY Slip Op 09392 [79 AD3d 598] |
| December 21, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v ScottLiden, Appellant. |
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Order, Supreme Court, New York County (John Cataldo, J.), entered on or about November 4,2008, which determined that, absent an article 78 proceeding, the Supreme Court did not havejurisdiction to review the determination of the Board of Examiners of Sex Offenders that defendant isrequired to register as a sex offender on the basis of an out-of-state conviction, and order, same courtand Justice, entered on or about January 8, 2009, which adjudicated defendant a level three sexoffender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimouslyaffirmed, without costs.
The question of whether a person is required to register as a sex offender on the basis of anout-of-state conviction is determined by the Board of Examiners, and is not part of the classificationproceeding conducted thereafter by the court; accordingly, a person seeking review of the Board'sdetermination that he or she is obligated to register in the first place is required to bring an article 78proceeding against the Board. The plain language of Correction Law § 168-k (2) dictates thisresult, and we agree with the other appellate courts that have reached this conclusion (see Matter ofMandel, 293 AD2d 750, 751 [2d Dept 2002], appeal dismissed 98 NY2d 727 [2002];People v Williams, 24 AD3d 894,895 [3d Dept 2005], lv denied 6 NY3d 710 [2006]; People v Carabello, 309 AD2d1227, 1228 [4th Dept 2003]). This Court's decision in People v Millan (295 AD2d 267[2002]) is not to the contrary, because the parties to that appeal did not litigate the present issue andwe thus had no occasion to reach it (see e.g. People v Louree, 8 NY3d 541, 546 n [2007]). Defendant's policyarguments would be more appropriately addressed to the Legislature than to the courts.
Defendant did not preserve his claim that this interpretation of the statute leads to a deprivation ofequal protection and due process. Even if we were to conclude that this claim presents the type of legalquestion that may be raised for the first time on this civil appeal (see Chateau D' If Corp. v City ofNew York, 219 AD2d 205, 209-210 [1996], lv denied 88 NY2d 811 [1996]), wewould reject it. There is a rational basis for the Legislature's allocation of the registration determinationfor in-state offenders to courts and for out-of-state offenders to the Board. New York courts can makethe registration determinations for in-state offenders at the time of sentencing (see People vHernandez, 93 NY2d 261 [1999]), but persons convicted in [*2]other states generally have no occasion to appear before New Yorkcourts in connection with those convictions. Accordingly, the statute is constitutional to the extent that itdelegates to the Board the task of identifying and determining which out-of-state offenders haveconvictions that require them to register in New York, and to the extent it restricts the availability ofjudicial review of that issue (see Matter of New York City Dept. of Envtl. Protection v New YorkCity Civ. Serv. Commn., 78 NY2d 318, 322 [1991]).
We also reject defendant's challenges to his adjudication as a level three offender. The courtproperly based the point assessments at issue on reliable hearsay (see People v Mingo, 12 NY3d 563, 572-574, 576-577 [2009]).Concur—Andrias, J.P., Saxe, Moskowitz, Acosta and Freedman, JJ.