PEOPLE v. HARRIS (2024)

MEMORANDUM AND ORDER

Appeal from an order of the County Court of Schenectady County (Matthew J. Sypniewski, J.), entered September 18, 2018, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.

In 2012, defendant pleaded guilty to sexual abuse in the first degree stemming from his sexual abuse of a six-year-old relative, and was sentenced to 71/212 years in prison followed by 20 years of postrelease supervision.  In anticipation of his release, the Board of Examiners of Sex Offenders prepared a risk assessment instrument and recommended that he be classified as a risk level three sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6–c [hereinafter SORA]), with a sexually violent offender designation, based upon the override factor that he had a prior felony conviction for a sex offense, namely, attempted sodomy in the first degree (see Penal Law former § 130.50[3];  Correction Law § 168–a [3][a]).  At the hearing, County Court advised defendant, who was represented by counsel, that he had a right to a hearing to challenge the Board's recommendation and the presumptive override, and to contest the evidence and present a defense.  Defendant then waived a hearing and, on defendant's consent, County Court classified him as a risk level three sex offender and designated him a sexually violent offender, and defendant appeals.

It is well established that SORA risk level classification proceedings are civil in nature and not part of the criminal action (see People v. Watts, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2024 N.Y. Slip Op. 00926, *2–3 [2024];  People v. Perez, 35 N.Y.3d 85, 94, 125 N.Y.S.3d 308, 149 N.E.3d 1 [2020];  People v. Stevens, 91 N.Y.2d 270, 277, 669 N.Y.S.2d 962, 692 N.E.2d 985 [1998]) and, as such, SORA risk determinations are “subject to a civil appeal process” (People v. Buyund, 37 N.Y.3d 532, 540, 162 N.Y.S.3d 276, 182 N.E.3d 1068 [2021]).  By statute, appeals as of right to the Appellate Division from SORA risk classification orders are pursuant to CPLR articles 55 and 57 (see Correction Law § 168–n [3]).  However, a party who consents to an order, including a SORA order, in a civil proceeding is not aggrieved by the order within the meaning of CPLR 5511 and, accordingly, defendant's appeal must be dismissed (see People v. White, 39 A.D.3d 979, 979, 833 N.Y.S.2d 726 [3d Dept. 2007];  see also People v. Jennings, 146 A.D.3d 823, 824, 43 N.Y.S.3d 918 [2d Dept. 2017];  People v. Johnson, 142 A.D.3d 1061, 1061, 37 N.Y.S.3d 455 [2d Dept. 2016], lv dismissed 28 N.Y.3d 1104, 45 N.Y.S.3d 365, 68 N.E.3d 93 [2016];  Matter of O'Sullivan v. Schebilski, 138 A.D.3d 1170, 1172, 30 N.Y.S.3d 351 [3d Dept. 2016];  People v. Brown, 125 A.D.3d 1380, 1380–1381, 1 N.Y.S.3d 722 [4th Dept. 2015];  People v. Welch, 30 A.D.3d 392, 393, 816 N.Y.S.2d 565 [2d Dept. 2006];  cf.  People v. Motta, 215 A.D.3d 771, 772, 185 N.Y.S.3d 718 [2d Dept. 2023]).  Defendant's argument that his consent was not voluntary due, in part, to the ineffective assistance of counsel may be addressed to County Court in a motion to vacate the order, “at which time he can present evidence in support of his allegations, proof of which is otherwise absent from this record” (People v. Johnson, 142 A.D.3d at 1061, 37 N.Y.S.3d 455;  see Matter of O'Sullivan v. Schebilski, 138 A.D.3d at 1172, 30 N.Y.S.3d 351;  Matter of Commissioner of Social Servs. v. Karcher, 129 A.D.3d 1351, 1351, 12 N.Y.S.3d 342 [3d Dept. 2015];  People v. Brown, 125 A.D.3d at 1381, 1 N.Y.S.3d 722;  see also People v. Eiss, 158 A.D.3d 905, 907, 70 N.Y.S.3d 604 [3d Dept. 2018], lv denied 31 N.Y.3d 907, 2018 WL 2123205 [2018]).

ORDERED that the appeal is dismissed, without costs.

Mackey, J.

Aarons, J.P., Pritzker, Lynch and Ceresia, JJ., concur.