PEOPLE v. BURGOS (2024)

Judgment, Supreme Court, New York County (Anthony J. Ferrara, J.), rendered October 2, 2017, convicting defendant, upon his plea of guilty, of burglary in the second degree as a sexually motivated felony and public lewdness, and sentencing him to an aggregate term of 31/212 years, unanimously modified, on the law, to the extent of vacating so much of the judgment as certified defendant a sex offender, required him to register under the Sora (Correction Law art 6–C), and imposed sex offender fees, and otherwise affirmed.  Appeal from order, same court (Thomas Farber, J.), entered on or about November 13, 2020, which denied defendant's CPL 440.20 motion to set aside the sex offender certification, unanimously dismissed, as academic.

As the People concede, burglary in the second degree as a sexually motivated felony is not a registrable sex offense under Sora (see People v. Conyers, 212 A.D.3d 417, 418, 181 N.Y.S.3d 74 [1st Dept. 2023], lv denied 39 N.Y.3d 1110, 186 N.Y.S.3d 825, 208 N.E.3d 53 [2023];  People v. Simmons, 203 A.D.3d 106, 111–112, 161 N.Y.S.3d 69 [1st Dept. 2022], lv denied 38 N.Y.3d 1035, 169 N.Y.S.3d 239, 189 N.E.3d 346 [2022]).  We therefore modify the judgment as indicated.

In light of the foregoing, defendant's appeal from the order denying his CPL 440.20 motion is academic.  In any event, as defendant concedes, a CPL 440.20 motion is not the proper vehicle to challenge his sex offender certification because the certification is part of the judgment of conviction, not part of the sentence (see People v. Buyund, 37 N.Y.3d 532, 539, 162 N.Y.S.3d 276, 182 N.E.3d 1068 [2021];  People v. Miguel, 140 A.D.3d 497, 32 N.Y.S.3d 485 [1st Dept. 2016], lv denied 28 N.Y.3d 908, 47 N.Y.S.3d 223, 69 N.E.3d 1019 [2016]).