Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 6, #11©

Issue: Court order after a SORA classification hearing, and appellate remedies

In determining the risk level under the Sex Offender Registration Act, the hearing court has discretion to vary from the Board's assessment. Board of Examiners of Sex Offenders v Ransom, 249 AD2d 891, 672 NYS2d 185 (4th Dept 1998). The court may reconsider and redetermine the risk level even for reasons and grounds not set forth in the statute. People v Wroten, 286 AD2d 189, 732 NYS2d 513 (4th Dept 2001).


The hearing court must make a written order. Corr Law §168-n(3); People v Lasch, 309 AD2d 1086, 765 NYS2d 916 (3d Dept 2003); People v Hill, 17 AD3d 715, 792 NYS2d 695 (3d Dept 2005). It should be denominated as an order or state "It is so ordered" to make clear that it is an appealable document. See People v Joslyn, 27 AD3d 1033, 811 NYS2d 807 (3d Dept 2006).


A standardized form that adopted the Board's recommendation, without further explanation, was insufficient to comply with the requirement of findings and conclusions. People v Marr, 20 AD3d 692, 798 NYS2d 260 (3d Dept 2005); see also, People v Miranda, 24 AD3d 909, 806 NYS2d 729 (3d Dept 2005); People v Sanchez, 20 AD3d 693, 798 NYS2d 258 (3d Dept 2005).


In another case, despite the lack of findings of fact and conclusions of law, the order after the hearing was still proper. People v Forney, 28 AD3d 446, 812 NYS2d 143 (2d Dept 2006).


Appeal

The sentencing court's SORA "certification" upon conviction is part of the final adjudication and may be challenged on direct appeal. Corr Law §§168-(d)(3), 168-n(3); People v Hernandez, 93 NY2d 261, 689 NYS2d 695, 711 NE2d 972 (1999).

Either party may appeal a SORA risk level determination. Corr Law §168-d(3). The appeal / proceeding is civil in nature. See People v Sumpter, 177 Misc2d 492, 676 NYS2d 825 (City Crim Ct 1998).


A civil filing fee of $315 is required, CPLR 8022, unless the appellant is represented by a Legal Aid office or public defender or has been found indigent. An offender financially unable to afford counsel, assignment of counsel continues through the appeal, and the offender may appeal as a poor person. Corr Law §168-n(3).


A written order from the hearing court is required to appeal a SORA determination. A copy of the court order, with notice of entry, should be served by the prevailing party upon the other party. Civil rules govern the SORA appellate procedure. Within 30 days, one copy of the notice of appeal is served on the opposing party, and two copies filed with the county clerk. CPLR 5515. An attorney's signature must be on the notice of appeal, as on all civil papers. 22 NYCRR §130-1.1a.


Seeking leave to Court of Appeals

After decision by the intermediate appellate court, a request for leave to appeal to the Court of Appeals should be made by motion rather than by letter. A $45 filing fee for a civil motion is required. 22 NYCRR §500.11.

 

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