IN RE: PAROLEE S.V.

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: PAROLEE S.V., Petitioner, v. Joseph C. CALABRESE, etc., Respondent.

Decided: January 26, 1998

Before BRACKEN, J.P., and SULLIVAN, SANTUCCI and LUCIANO, JJ. Matthew Muraskin, Hempstead (Judah Serfaty, of counsel), for petitioner. Dennis C. Vacco, Attorney General, New York City (Christine Morrison, of counsel), for respondent. Denis Dillon, District Attorney, Mineola (Douglas Noll, of counsel), nonparty respondent pro se.

Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondent from enforcing his risk level determination, dated January 9, 1997, that the petitioner was a risk level two sex offender under the Sex Offender Registration Act (Correction Law § 168 et seq.), which was contained in the risk level determination form, and to seal the record and all papers filed in connection with this proceeding, and to require that the petitioner's name not appear in any written decisions or orders entered in this proceeding.

Cross motion by the respondent to dismiss the petition.

ORDERED that so much of the petition as seeks to prohibit the enforcement of the risk level determination on the ground that Correction Law § 168 et seq. may not constitutionally be applied to persons convicted of sex crimes committed prior to January 21, 1996, is converted into an action for a judgment declaring that Correction Law § 168 et seq. is unconstitutional if applied to such cases;  and it is further,

ADJUDGED that Correction Law § 168 et seq. is declared to be constitutional as applied to persons convicted of sex crimes committed prior to January 21, 1996;  and it is further,

ORDERED and ADJUDGED that the cross motion is granted to the extent that the petition is otherwise dismissed, without costs or disbursements.

The petitioner was convicted on September 4, 1994, upon his plea of guilty, of sexual abuse in the first degree based on an incident involving a 10-year-old girl.   Prior to the petitioner's release from prison, a hearing was conducted pursuant to Correction Law § 168-n to determine his risk level as a sex offender, in compliance with the registration and notification requirements of the Sex Offender Registration Act (see, Correction Law § 168 et seq.).   After a hearing, the court classified the petitioner as a risk level two sex offender, and signed a risk level determination form to that effect.

 The branch of the present petition which seeks to prohibit the enforcement of the risk level determination on the ground that the Sex Offender Registration Act is invalid insofar as it is applied to persons convicted in connection with crimes which occurred before January 21, 1996, the effective date of the Act, as such an application would violate the ex post facto clause of the United States Constitution (U.S. Const. art. I § 10), should have been brought as an action for a judgment declaring that Correction Law § 168 et seq. is unconstitutional.   Under the particular circumstances presented, we conclude that there is no impediment to converting that branch of the petition (see, Matter of Morgenthau v. Erlbaum, 59 N.Y.2d 143, 464 N.Y.S.2d 392, 451 N.E.2d 150).

 Turning to the merits of that argument, we hold that retroactive application of Correction Law § 168 et seq. does not violate the ex post facto clause of the United States Constitution, essentially for the reasons stated in Doe v. Pataki, 120 F.3d 1263 (see also, Roe v. Office of Adult Probation, 125 F.3d 47;  E.B. v. Verniero, 119 F.3d 1077;  Matter of M.G. v. Travis, 236 A.D.2d 163, 667 N.Y.S.2d 11;  Artway v. Attorney General of State of N.J., 81 F.3d 1235 (3d Cir.1996);  Doe v. Poritz, 142 N.J. 1, 662 A.2d 367;  W.P. v. Poritz, 931 F. Supp. 1199, reversed 119 F.3d 1077 (3d Cir.1997);  Nitz v. Otte, 87 F.3d 1321 (9th Cir.1996);  Stearns v. Gregoire, 124 F.3d 1079 (9th Cir.1997);  State v. Ward, 123 Wash.2d 488, 869 P.2d 1062;  State v. Noble, 171 Ariz. 171, 829 P.2d 1217;  but see, Roe v. Office of Adult Probation, 938 F.Supp. 1080;  State v. Myers, 260 Kan. 669, 923 P.2d 1024;  State v. Babin, 637 So.2d 814).

The petitioner's remaining contentions are not properly reviewable, either in a proceeding pursuant to CPLR article 78 in the nature of prohibition or in an action for a declaratory judgment (see, Matter of Raphael S., 246 A.D.2d 659, 668 N.Y.S.2d 50 [decided herewith] ).

MEMORANDUM BY THE COURT.

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