People v Baluja

People v Baluja 2013 NY Slip Op 05806 Decided on September 11, 2013 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 11, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
DANIEL D. ANGIOLILLO, J.P.
CHERYL E. CHAMBERS
SANDRA L. SGROI
JEFFREY A. COHEN, JJ.
2012-02639

[*1]People of State of New York, respondent,

v

William Baluja, appellant. Mark Diamond, New York, N.Y., for appellant.




Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J.
Brennan of counsel), for respondent.


DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated February 14, 2012, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

ORDERED that the order is affirmed, without costs or disbursements.

The defendant was convicted of four counts of unlawful surveillance in the second degree (Penal Law § 250.45[2]). At the hearing to determine the defendant's risk level under the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]), the defendant contended, inter alia, that he had not been convicted of a sex offense requiring his registration as a sex offender under SORA. The County Court determined that the defendant's challenge was not properly before it because any contention related to registrability under SORA must be asserted in a CPLR article 78 proceeding. Contrary to the County Court's determination, pursuant to SORA, a defendant's obligation to register as a sex offender based upon a New York conviction is determined by the court, not the Board of Examiners of Sex Offenders and, thus, the registrability issue in this context does not give rise to an administrative determination which could be subject to review in a CPLR article 78 proceeding (see Correction Law § 168-d[1][a]; cf. People v Liden, 19 NY3d 271, 275). However, the defendant's contention that his conviction does not subject him to sex offender registration is without merit (see Penal Law § 250.45[2]; Correction Law § 168-a[2][e]).

The defendant was properly assessed 20 points under risk factor 13 for unsatisfactory conduct while confined that involved inappropriate sexual conduct (see People v Williams, 102 AD3d 665; People v Williams, 100 AD3d 610; People v Lawson, 90 AD3d 1006).

The defendant's remaining contentions are without merit.
ANGIOLILLO, J.P., CHAMBERS, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court