THE PEOPLE OF THE STATE OF NEW YORK v. RAYVON McNEALY (2026)

MEMORANDUM AND ORDER

Calendar Date:  June 1, 2026

Appeal from an order of the County Court of Broome County (Joseph Cawley, J.), entered February 24, 2025, which classified defendant as a risk level one sex offender and designated him a sexually violent offender pursuant to the Sex Offender Registration Act.

Defendant was convicted of sexual abuse in the first degree and endangering the welfare of a child and sentenced to a term of imprisonment.¹  In anticipation of defendant's release and in accordance with the Sex Offender Registration Act (see Correction Law art 6–C), the Board of Examiners of Sex Offenders prepared a risk assessment instrument presumptively classifying defendant as a risk level one sex offender and designating him a sexually violent offender by virtue of his conviction of sexual abuse in the first degree.  At the ensuing hearing, defendant challenged, among other things, his designation as a sexually violent offender, asserting that County Court maintained discretion as to whether such designation was warranted despite the nature of his conviction.  The court rejected defendant's assertion and classified him as a risk level one sex offender with a sexually violent offender designation.  Defendant appeals.

We affirm.  It is well settled that “the decision whether to designate a defendant a sexually violent offender is not a matter with respect to which the adjudicating court may exercise discretion” (People v. Talluto, 39 NY3d 306, 315 [2022];  see People v. Bullock, 125 AD3d 1, 7–8 [1st Dept 2014], lv denied 24 NY3d 915 [2015];  People v. Lockwood, 308 A.D.2d 640, 640 [3d Dept 2003] ).  As a sex offender convicted of sexual abuse in the first degree, which is one of the statutorily enumerated sexually violent offenses for Sex Offender Registration Act purposes (see Correction Law § 168–a [3][a][i];  [7][b];  Penal Law § 130.65), County Court had no discretionary authority and was statutorily bound to designate defendant as a sexually violent offender (see People v. Talluto, 39 NY3d at 315;  People v. Montesquieu, 217 AD3d 548, 549 [1st Dept 2023], lv denied 40 NY3d 909 [2023];  People v. Williams, 216 AD3d 438, 439 [1st Dept 2023], lv denied 40 NY3d 904 [2023];  People v. Bullock, 125 AD3d at 9;  People v. Lockwood, 308 A.D.2d at 640–641), even if, as defendant contends, the nature of the underlying criminal conduct was not violent (see People v. Khan, 125 AD3d 433, 433–434 [1st Dept 2015], lv denied 25 NY3d 903 [2015] ).

Clark, J.P., Fisher, Powers and Corcoran, JJ., concur.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   Although defendant was initially convicted of two counts of sexual abuse in the first degree, on appeal this Court reversed defendant's conviction of sexual abuse in the first degree under count two of the indictment and dismissed that count as duplicitous (230 AD3d 917, 917–919 [3d Dept 2024], lv denied 42 NY3d 1021 [2024] ).

Mackey, J.