People v Bradley

[*1] People v Bradley 2012 NY Slip Op 51561(U) Decided on August 17, 2012 Supreme Court, Kings County McKay, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 17, 2012
Supreme Court, Kings County

The People of the State of New York

against

Fred Bradley aka SHA-HEED RAHMAN, DEFENDANT



3982-88



For the People: Hon. Charles J. Hynes, District Attorney

Assistant District Attorney Morgan Dennehy, of counsel

For the Defendant: Pro se

Joseph Kevin McKay, J.

Defendant Fred Bradley aka Sha-Heed Rahman has submitted a pro se motion dated June 24, 2012 seeking to vacate his judgment of conviction (by guilty pleas) pursuant to CPL 440.10 on the grounds that requiring him to "retroactively" register under the Sex Offender Registration Act "SORA" [also referred to as Megan's Law] (Corrections Law § 168 et seq.) violates the Ex Post Facto Clause of the United States Constitution and that its imposition without warning rendered his plea involuntary and illegal. The defendant also submitted supplemental papers dated July 10, 2012. The People have submitted an August 15, 2012 Affirmation in Opposition to defendant's motion, accompanied by a Memorandum of Law, and at the Court's request faxed a copy of another Justice's decision, dated October 7, 2005, denying defendant's earlier 440 motion brought on different grounds. See n.1 infra.

PROCEDURAL HISTORY

Defendant pleaded guilty on December 6, 1989 (during trial) before now retired Justice Francis X. Egitto to three counts of murder in the second degree and one count of aggravated sexual abuse (all counts involving the same victim). On January 8, 1990 Justice Egitto sentenced defendant to 25 years to life on each of the murder in the second degree counts and 8 1/3 to 25 years on the aggravated sexual abuse count, all counts to run concurrently. Defendant's sentence was affirmed in 1991 by the Appellate Division - Second Department. See People v Bradley, 175 AD2d 686 (2d Dept 1991), lv denied 79 NY2d 853 (1992), error coram nobis denied 15 AD3d 497 (2d Dept 2005), lv denied 4 NY3d 851 (2005).

DEFENDANT'S CONTENTIONS

Defendant now claims that he should not be required to register under SORA since [*2]

that law came into effect in 1996, years after his 1989 guilty plea and early 1990 sentence. Specifically, defendant contends that his judgment of conviction should be vacated since the requirement of sex offender registration was not part of his plea bargain "contract." Defendant further contends that retroactive application of SORA violates the Ex Post Facto Clause of the United States Constitution.

Defendant's motion is now summarily DENIED in its entirety as premature and on the merits.[FN1] I find that defendant's ex post facto/retroactivity arguments are devoid of merit. It is now well-settled that requiring a convicted defendant to register upon his release from prison in accordance with SORA does not violate the Ex Post Facto Clause of our federal Constitution since SORA is not punitive in nature. See Doe v Pataki, 120 F3d 1263 (2d Cir 1997), cert denied 522 US 1122 (1998); People v Foster, 87 AD3d 299, 307 (2d Dept 2011), lv denied 18 NY3d 858 (2011); Matter of Bush v New York State Bd of Examiners of Sex Offenders, 72 AD3d 1078 (2d Dept 2010); People v Szwalla, 61 AD3d 1289 (3d Dept 2009); People v Bove, 52 AD3d 1124 (3d Dept 2008); People v Frank, 37 AD3d 1043 (4th Dept 2007), lv denied 9 NY3d 803 (2007), rearg. denied 9 NY3d 977 (2007); People v Brown, 302 AD2d 919 (4th Dept 2003); People v Mitchell, 300 AD2d 377 (2d Dept 2002), lv denied 99 NY2d 510 (2003); People v Lee, 292 AD2d 639 (3d Dept 2002); People v Hughes, 269 AD2d 858 (4th Dept 2000), lv denied 95 NY2d 798 (2000); People v Hernandez, 264 Ad2d 783 (2d Dept 1999), lv denied 94 NY2d 863 (1999); People v Langdon, 258 AD2d 937 (4th Dept 1999); People v Grice, 254 AD2d 710 (4th Dept 1998), lv denied 92 NY2d 1032 (1998); Matter of Parolee S.V. v Calabrese, 246 AD2d 655 (2d Dept 1998), lv denied 91 NY2d 814 (1998); Matter of M.G. v Travis, 236 AD2d 163 (1st Dept 1997), lv denied 91 NY2d 814 (1998); see also Smith v Doe, 538 US 84 (2003), rehearing denied 538 US 1009 (2003) [holding that Alaska's Sex Offender Registration Act was non-punitive and therefore its retroactive application did not violate the Ex Post Facto Clause].

Defendant also argues that the registration requirement violates his plea agreement in some contractual sense. This point has no more merit than his ex post facto claim, and is rejected based on the many state and federal cases cited above.[FN2] Moreover, it is well-settled that SORA is a [*3]collateral consequence of a guilty plea and thus a court's failure to address SORA registration requirements before accepting a defendant's guilty plea does not render a defendant's plea involuntary. See People v Graviano, 14 NY3d 546 (2010); People v Kahn, 94AD3d 774 (2d Dept 2012); People v Vasquez, 85 AD3d 1068 (2d Dept 2011), lv denied 17 NY3d 862 (2011); People v Smith, 85 AD3d 1065 (2d Dept 2011), lv denied 17 NY3d 862 (2011); People v Ali, 55 AD3d 919 (2d Dept 2008), lv denied 9 NY3d 1010 (2007). Accordingly, defendant's motion is summarily DENIED.

The defendant is hereby advised of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 11201 for a certificate granting leave to appeal the denial of defendant's CPL 440.10 motion. This application must be made within 30 days of service of this Decision and Order. Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certificate granting leave to appeal is granted (22 NYCRR 671.5).

The application must contain defendant's name and address, indictment number, the questions of law or fact to be reviewed and a statement that no prior application for such certificate has been made. A copy of the Court Order and a copy of any Opinion of the Court must be included. In addition, a copy of the application must be served on the District Attorney, as follows: Kings County District Attorney Appeals Bureau, 350 Jay Street, Brooklyn, New York 11201.

The Clerk is directed to mail a copy of this Decision and Order to defendant Fred Bradley aka Sha-Heed Rahman, DIN No. 90-A-0409, Gowanda Correctional Facility, P.O. Box 311, Gowanda, New York, 14070-0311 and to Assistant District Attorney Morgan Dennehy, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, New York 11201.

IT IS SO ORDERED.

ENTER,

________________________________

J.S.C. Footnotes

Footnote 1:The People correctly argue that defendant's constitutional claim is premature and should not be brought by way of a 440 motion since defendant has not yet been before a court for a SORA risk assessment hearing, which is the proper forum for such a registration ex post facto claim. See generally People v Griffin, 171 Misc 2d 145 (Sup Ct, NY County 1996). If not premature his claim would be permissibly barred for his failure to raise it in his first 440 motion. See CPL 440.10(3)(c). In addition to these grounds for the denial of defendant's motion, the Court will also address the clear lack of merit of defendant's claim.

Footnote 2: In his supplemental papers defendant also contends that former United States Attorney General Alberto Gonzales violated "the separation of powers" doctrine by applying the federal Sex Offender Registration and Notification Act ["SORNA"] retroactively. This claim also lacks merit. The applicable statute in this motion is the New York State Sex Offender Registration Act, "SORA", not "SORNA." Moreover, even the SORNA statute may be applied retroactively once the United States Attorney General so specifies. Reynolds v United States, __US__, 132 S Ct 975 (2012).