People v. Liden

OPINION OF THE COURT

Rulings of administrative agencies can ordinarily be reviewed only in proceedings under CPLR article 78. We hold, however, that the unusual features of New York’s sex offender registration system justify an exception to that rule: A determination by the Board of Examiners of Sex Offenders that a person who committed an offense in another state must register in New York is reviewable in a proceeding to determine the offender’s risk level.

Having determined that defendant must register, the Board, as SORA requires, made a recommendation to Supreme Court in the county of defendant’s residence as to the risk level that should be assigned to him (see Correction Law § 168-k [2]). The Board recommended risk level three, which reflects a high risk of a repeat offense (see Correction Law § 168-Z [6] [c]).

In submissions to the court considering his risk level, defendant argued that he should not have been required to register as a sex offender at all. Defendant pointed out that unlawful imprisonment in the second degree—the New York crime corresponding to the Washington crime of which defendant was convicted—is a misdemeanor (see Penal Law § 135.05). Until 2002, a crime committed in another state was defined as a “sex offense” in New York only if it included “all of the essential elements” of a New York “felony” (see former Correction Law § 168-a [2] [b] [amended by L 2002, ch 11, § 1]). The 2002 amendment, which replaced the word “felony” with the word “crime” (Correction Law § 168-a [2] [d]), applied only to offenses committed on or after its effective date (L 2002, ch 11, § 24). The People now concede that defendant’s argument was well-founded, and that the Board’s determination requiring him to register was an error.

Supreme Court held, however, that it did not “have jurisdiction to review” the Board’s determination. Supreme Court believed itself bound by several Appellate Division decisions holding that a determination of registrability may be challenged only in an article 78 proceeding (see Matter of Mandel, 293 AD2d 750 [2d Dept 2002]; People v Carabello, 309 AD2d 1227 [4th Dept 2003]; People v Williams, 24 AD3d 894 [3d Dept 2005]). In a later order, Supreme Court adjudicated defendant a level three

The procedure for registration of sex offenders who move to New York from other states is set out in Correction Law § 168-k. Section 168-k (2) says, in relevant part:

“The [Board of Examiners of Sex Offenders] shall determine whether the sex offender is required to register with the [Division of Criminal Justice Services]. If it is determined that the sex offender is required to register . . . the board shall. . . make a recommendation regarding the level of notification . . . This recommendation . . . shall be submitted by the board to the county court or supreme court and to the district attorney in the county of residence of the sex offender and to the sex offender. It shall be the duty of the county court or supreme court in the county of residence of the sex offender ... to determine the level of notification.”

Thus the statute assigns the registrability determination to the Board, and the risk level (“level of notification”) determination to the court: The Board “shall determine” whether the out-of-state sex offender is required to register, but shall only “make a recommendation” as to the risk level; it is “the duty of the court” to determine the risk level. (By contrast, when a sex offense is committed in New York, both registrability and risk level are decided by a court [see Correction Law § 168-d (1) (a); § 168-n (2)].) The statute does not address the question of how an alleged sex offender from another state who thinks the Board has erred in determining that he is required to register may seek judicial review.

The usual way to obtain judicial review of the action of an administrative agency is a proceeding under CPLR article 78 (“Proceeding Against Body or Officer”). Article 78 proceedings are subject to a four-month statute of limitations, running from the time when “the determination to be reviewed becomes final

An unusual, perhaps unique, feature of a Board determination under Correction Law § 168-k (2) is that, when the determination is adverse to the person affected, a judicial proceeding automatically follows. In every such case, the Board must make a recommendation to a court in the county of the offender’s residence, and the court then must determine the alleged sex offender’s risk level. Where the initial determination that the person must register is disputed, plainly the most efficient course is for the risk level court to resolve the dispute; to have two separate courts examine essentially the same facts—one to decide registrability in an article 78 proceeding, and the other to decide risk level—serves no purpose. Recognizing this, a number of trial level courts have held—in contrast to the Appellate Division holdings we cited above—that registrability can be considered in the risk level proceeding (Matter of Nadel, 188 Misc 2d 427 [Sup Ct, NY County 2001, Richter, J.]; People v Godbolt, 2002 NY Slip Op 40201 [U] [Sup Ct, Queens County 2002]; People v Gundel, 2002 NY Slip Op 40012 [U] [Dutchess County Ct 2002]).

To allow the risk level court to decide the registrability issue is not just a more efficient way to proceed; it is good policy in other ways. At the time the Board makes its registrability determination, the person alleged to be a sex offender will often be without a lawyer; a lawyer will be appointed for him in the risk level proceeding, but the article 78 statute of limitations might run before the lawyer is appointed, or has had a chance to focus on the registrability issue. And to bar the risk level court from examining registrability may put that court in the uncomfortable position of deciding the risk level of someone who, the court is convinced, is not a sex offender within the meaning of the statute at all.

Policy reasons like these would not, in the ordinary case, justify an exception to the rule that limits litigants to article 78

Accordingly, the order of the Appellate Division should be reversed, without costs, and the Board’s determination that defendant is required to register as a sex offender annulled.

Chief Judge Lippman and Judges Ciparick, Gkaffeo, Read, Pigott and Jones concur.

Order reversed, etc.