| Matter of Kasckarow v Board of Examiners of Sex Offenders ofState of N.Y. |
| 2013 NY Slip Op 03485 [106 AD3d 915] |
| May 15, 2013 |
| Appellate Division, Second Department |
| In the Matter of Daniel Kasckarow,Appellant, v Board of Examiners of Sex Offenders of State of New York,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Cecelia C. Chang andBrian A. Sutherland of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the Boardof Examiners of Sex Offenders of the State of New York, dated January 25, 2011, thatthe petitioner is required to register as a sex offender pursuant to Correction Law article6-C, the petitioner appeals from a judgment of the Supreme Court, Kings County(Schmidt, J.), dated October 25, 2011, which denied the petition and dismissed theproceeding.
Ordered that the judgment is affirmed, without costs or disbursements.
In 1998, the petitioner was charged with indecent assault in Florida, a felony underFlorida law (see Fla Stat Ann §§ 794.011 [1] [h]; 800.04 [3]). Thepetitioner pleaded "nolo contendre" to the charge. Pursuant to Florida Statutes Annotated§ 948.01, the Florida court withheld adjudication and imposed five years ofprobation. As required by Florida law, the petitioner registered as a sex offender in thatstate (see Fla Stat Ann § 943.0435 [1] [a] [1] [a] [I]).
In 2006, the petitioner relocated to New York. The Board of Examiners of SexOffenders of the State of New York (hereinafter the Board) determined that the petitionerwas required to register as a sex offender pursuant to the Sex Offender Registration Act(hereinafter SORA; Correction Law art 6-C). The petitioner commenced this CPLRarticle 78 proceeding to review that determination.
The Supreme Court did not err in denying the petition and dismissing the proceeding.SORA provides that any "sex offender" must comply with its provisions (seeCorrection Law § 168-f). A "sex offender" is defined as "any person who isconvicted" of a "sex offense" (Correction Law § 168-a [1], [2]). The definition ofa "sex offense" with respect to an offense committed in another jurisdiction is "aconviction of (i) an offense in any other jurisdiction which includes all of the essentialelements of any such crime" that constitutes a "sex offense" under SORA (CorrectionLaw § 168-a [2] [d] [i]). The statute also provides that a "sex offense" includes a"conviction of . . . (ii) a felony in any other jurisdiction for which theoffender is required to register as a sex offender in the jurisdiction in which theconviction occurred" (Correction Law § 168-a [2] [d] [ii]).
The relevant standard of review pursuant to CPLR 7803 (3) is whether thedetermination of the Board was made in violation of lawful procedure, was affected byan error of law, or was arbitrary and capricious or an abuse of discretion (see Matter of Holcomb vWilliams, 72 AD3d 687, 688 [2010]).
The Supreme Court properly determined that the petitioner is subject to theprovisions of SORA based upon the Florida disposition, and that the Board did notviolate lawful procedure, make an error of law, act arbitrarily and capriciously, or abuseits discretion. It is undisputed that the petitioner was required to register as a sex offenderin Florida based on the disposition of a felony charge there. Furthermore, we concludethat the Florida disposition, in which the petitioner pleaded nolo contendere andadjudication was withheld (see Fla Stat Ann § 948.01), constituted a"conviction" within the meaning of SORA (see Correction Law § 168-a[2] [d]). The petitioner's nolo contendere plea was similar to an Alford plea(see North Carolina v Alford, 400 US 25 [1970]), in which a defendant mayplead guilty to a crime without admitting culpability (see Matter of Silmon vTravis, 95 NY2d 470 [2000]). The Court of Appeals has held that "a convictionpremised upon an Alford plea may generally be used for the same purposes asany other conviction" (People v Miller, 91 NY2d 372, 378 [1998]; see Matterof Silmon v Travis, 95 NY2d at 475). Indeed, out-of-state nolo contendere pleashave been recognized as convictions in New York for purposes of second felonyoffender sentencing (see People v Long, 207 AD2d 988, 989 [1994]), and a NewYork felony conviction pursuant to an Alford plea may serve as the basis fordisbarment of an attorney (see Matter of Hopfl, 48 NY2d 859 [1979]). By parityof reasoning, an out-of-state nolo contendere plea may be treated as a conviction forpurposes of subjecting a person to the requirements of SORA. Accordingly, thepetitioner was required to register as a sex offender under SORA and to comply withrelated requirements imposed by that statute (see Correction Law § 168-a[2] [d] [ii]; Matter of Smith vDevane, 73 AD3d 179, 182-184 [2010]).
The petitioner's constitutional argument is not properly before this Court (see Charles v Broad St. Dev.,LLC, 95 AD3d 814 [2012]; Yeshiva Chasdei Torah v Dell Equity, LLC, 90 AD3d 746,747 [2011]). Dillon, J.P., Chambers, Austin and Roman, JJ., concur.