People v Smith

People v Smith 2010 NY Slip Op 08793 [78 AD3d 609] November 30, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

The People of the State of New York, Respondent,
v
Tyheem Smith, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Claudia S. Trupp of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.

Judgment of resentence, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered June 9, 2009, certifying defendant as a sex offender pursuant to Correction Law § 168-d (1), unanimously affirmed.

The court properly determined that the Sex Offender Registration Act applies to defendant because of his kidnapping convictions, which involved the taking of two children as hostages along with their parents, and we reject his claim that the statute is unconstitutional as applied to him. In People v Knox (12 NY3d 60, 69 [2009], cert denied 558 US —, 130 S Ct 552 [2009]), the Court of Appeals held that "the Legislature could constitutionally provide that all those convicted of kidnapping or unlawfully imprisoning children not their own, or of attempting to commit those crimes, be conclusively deemed sex offenders." We see no basis to create an exception for a fact pattern where a kidnapper does not initially choose a child as a target, and the child becomes an "incidental" victim. We note that the circumstances of this kidnapping were at least as egregious as those described in Knox and its companion cases, and that once this defendant came upon a family he intended to take hostage, and discovered that the family included children, the children became targets of the kidnapping. Concur—Tom, J.P., Saxe, Friedman, Sweeny and Abdus-Salaam, JJ.