People v Pero

People v Pero 2008 NY Slip Op 02072 [49 AD3d 1010] March 13, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 14, 2008

The People of the State of New York, Respondent, v Edward R. Pero, Appellant.

—[*1] D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Robin S. Engler of counsel), for respondent.

Kane, J. Appeal from an order of the County Court of Broome County (Mathews, J.), entered September 11, 2006, which denied defendant's motion to vacate his classification as a risk level II sex offender pursuant to the Sex Offender Registration Act.

In 1993, defendant pleaded guilty to the crime of attempted sodomy in the first degree. Following his release from prison, he was classified as a risk level II sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [hereinafter SORA]). In 2004, defendant declined an opportunity to challenge his risk level classification pursuant to the stipulation in Doe v Pataki (3 F Supp 2d 456 [1998]). In 2006, defendant moved to vacate his risk level classification and grant him a new hearing or, alternatively, for relief from the obligation to register. County Court denied defendant's motion, prompting this appeal.

County Court did not err in denying defendant's motion to vacate his risk level classification. The state has since stipulated, pursuant to the Second Circuit's decision in Doe v Pataki (481 F3d 69 [2007]), that a class of individuals including defendant will be afforded a new opportunity to request a risk level classification hearing. Because that stipulation occurred subsequent to County Court's decision, it does not alter our determination on this appeal.

Defendant is ineligible for relief from SORA's registration requirements, as he has not [*2]been registered for at least 30 years (see Correction Law § 168-o, as amended by L 2006, ch 1, § 5; see generally Doe v Pataki, 481 F3d 69 [2007], supra). To the extent that he seeks relief pursuant to Correction Law § 168-o (2), we agree with County Court's denial of the request based upon defendant's failure to follow the procedure outlined in that subdivision.

Cardona, P.J., Mercure, Spain and Lahtinen, JJ., concur. Ordered that the order is affirmed, without costs.