PEOPLE v. CONCEPCION (2025)

Order, Supreme Court, New York County (Kathryn S. Paek, J.), entered on or about October 14, 2022, which adjudicated defendant a risk level one sex offender pursuant to the Sex Offender Registration Act (SORA) (Correction Law art 6–C), unanimously affirmed, without costs.

Defendant's foreign conviction is a registerable offense under SORA's essential elements test (Matter of North v. Board of Examiners of Sex Offenders of State of NY, 8 N.Y.3d 745, 840 N.Y.S.2d 307, 871 N.E.2d 1133 [2007]).  Defendant's underlying federal conviction of conspiracy to commit sex trafficking of minor (18 USC § 1594[c]) is the same underlying conviction presented in two recent decisions of this Court, both of which held that the conduct underlying the defendants’ federal convictions was within the scope of the New York State offense of promoting prostitution in the second degree (People v. Carno, 232 A.D.3d 476, 220 N.Y.S.3d 298 [1st Dept. 2024], lv denied 43 N.Y.3d 902, 2025 WL 1107038 [2025];  People v. Luck, 212 A.D.3d 535, 180 N.Y.S.3d 537 [1st Dept. 2023], lv denied 39 N.Y.3d 915, 2023 WL 3960566 [2023]).  That the defendants’ convictions in Carno and Luck fell within the scope of promoting prostitution in the second degree (Penal Law § 230.30[2]) rather than promoting prostitution in the third degree (Penal Law § 230.25[2]) is not significant;  the only difference between the elements of those two statutes is the victim's age, which is immaterial to this appeal.  We decline to overrule Carno or Luck in the absence of “a compelling justification for doing so” (People v. Peque, 22 N.Y.3d 168, 194, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert denied 574 U.S. 840, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014]).

Defendant's equal protection and constitutional challenges to his SORA adjudication are unpreserved (see People v. Horning, 143 A.D.3d 520, 520, 39 N.Y.S.3d 423 [1st Dept. 2016], lv denied 28 N.Y.3d 1124, 51 N.Y.S.3d 21, 73 N.E.3d 361 [2016]), and we decline to review them in the interest of justice.  As an alternative holding, we find them unavailing.