PEOPLE v. CINTRON (2007)

Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about August 4, 2006, which adjudicated defendant a level three sex offender under the Sex Offender Registration Act (Correction Law art. 6-C), unanimously affirmed, without costs.

 We agree with the motion court (13 Misc.3d 833, 827 N.Y.S.2d 445), as well as the Second Department (People v. Taylor, 42 A.D.3d 13, 835 N.Y.S.2d 241 [2007], appeal dismissed 9 N.Y.3d 887, 842 N.Y.S.2d 766, 874 N.E.2d 731 [2007] ), that the provision requiring persons convicted of certain nonsexual abduction-related crimes to register as sex offenders is constitutional.   Furthermore, the statute is constitutional as applied to this defendant (see People v. Cassano, 34 A.D.3d 239, 823 N.Y.S.2d 395 [2006], lv. denied 8 N.Y.3d 804, 830 N.Y.S.2d 700, 862 N.E.2d 792 [2007] ).

Defendant did not preserve his claim that he does not qualify as a sex offender because, on the effective date of the statute in 1996, he was not incarcerated or on parole or probation for an offense subject to registration.   Even if we were to conclude that this claim presents a question of law that defendant may raise for the first time on this civil appeal (see Chateau D'If Corp. v. City of New York, 219 A.D.2d 205, 209-210, 641 N.Y.S.2d 252 [1996], lv. denied 88 N.Y.2d 811, 649 N.Y.S.2d 379, 672 N.E.2d 605 [1996] ), we would find that since defendant's unlawful imprisonment sentence merged with his longer concurrent sentence for first-degree drug possession (see People v. Ramirez, 89 N.Y.2d 444, 450, 654 N.Y.S.2d 998, 677 N.E.2d 722 [1996] ), he was still incarcerated for a offense covered by the Sex Offender Registration Act on its effective date.

The court properly exercised its discretion in declining to grant a downward departure from defendant's presumptive risk level.