The People v. Sean Smith
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 213
The People &c.,
Respondent,
v.
Sean Smith,
Appellant.
Bruce D. Austern, for appellant.
Martin J. Foncello, for respondent.
Julie Steiner, for intervenor-respondent City of New
York.
CIPARICK, J.:
In September 2006, defendant Sean Smith was charged in
a New York County indictment with one count each of criminal
possession of a weapon in the second degree, criminal possession
of a weapon in the third degree, unlawful possession of
marijuana, and unlicensed driving, among other things.
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He
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ultimately pleaded guilty to both weapons charges and unlicensed
driving in full satisfaction of the indictment.
In exchange for
his guilty plea, defendant was promised prison terms of five
years for each felony weapon charge and fifteen days for
unlicensed driving, all to run concurrently, and five years of
post-release supervision.
At his plea hearing, Supreme Court
informed defendant that he would be required to register as a gun
offender pursuant to New York City's Gun Offender Registration
Act ("GORA").
In January 2009, defendant appeared for sentencing.
When asked by the sentencing court if the People had anything to
say, the Prosecutor stated: "Your Honor, the People rely on the
promised sentence of five years in jail and five years [of]
post-release supervision and Gun Offender Registration.
And I
have provided . . . [the GORA] registration [form] to defense
counsel."
Defense counsel requested that defendant receive
credit for time served, but did not otherwise object to the
sentence as stated by the prosecutor.
When the court pronounced
defendant's sentence, it stated that he was subject to GORA and
advised him of his obligations thereunder.
At no time during the
sentencing hearing did defendant challenge the legality of GORA
or its application to him.
Defendant appealed from the judgment of conviction and
sentence, arguing for the first time that GORA was preempted by
state law.
The Appellate Division, First Department, unanimously
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affirmed, concluding that "the registration and other
requirements of GORA are not part of the sentence, or otherwise
part of the judgment.
Instead, they are analogous to the
requirements of the Sex Offender Registration Act ('SORA'), and a
SORA determination . . . may not be reviewed on an appeal from a
criminal judgment" (People v Smith, 69 AD3d 450, 450-451 [1st
Dept 2009]).
Thus, the Court stated, it was affirming the
judgment of conviction and sentence "on the ground that no
reviewable issue ha[d] been raised" (id. at 451).
A Judge of this Court granted defendant leave to
appeal, and we now affirm.
Based on the New York City Council's finding that gun
offenders pose "unique dangers" to the citizens of New York City,
the City Council, effective March 24, 2007, adopted GORA, a
regulatory scheme to monitor gun offenders residing within the
city (see Background, Local Law No. 29 [2006] of City of New
York).
GORA states that a person convicted of specified gun
offenses in a court in New York City is a "gun offender" subject
to registration with the New York Police Department ("NYPD") (see
Administrative Code of City of NY § 10-602 [d], [e]).
Among
other things, GORA requires that a gun offender register at the
time sentence is imposed (see id. § 10-603 [a]) and personally
appear at the NYPD Gun Offender Monitoring Unit within 48 hours
of the date of conviction or the date of release from prison,
whichever is later (see id. § 10-603 [d]).
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Failure to comply
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with GORA requirements is a misdemeanor punishable by a fine up
to $1,000 and/or up to one year of imprisonment (see id. § 10608).
The threshold question on this appeal is whether GORA
registration is subject to appellate review pursuant to CPL
450.10.
"Appealability of determinations adverse to a defendant
cannot be presumed because 'a defendant's right to appeal within
the criminal procedure universe is purely statutory'" (People v
Nieves, 2 NY3d 310, 314 [2004]).
As relevant here, Criminal
Procedure Law 450.10 "authorizes a defendant to appeal from a
judgment in a criminal case, which brings up for review many of
the orders and rulings that precede or are part of it" (id. at
314).
A judgment is "comprised of a conviction and the sentence
imposed thereon and is completed by imposition and entry of the
sentence" (CPL 1.20 [15]).
In People v Stevens (91 NY2d 270 [1998]) and People v
Kearns (95 NY2d 816 [2000]), we held that the registration and
notification requirements of SORA -- regardless whether the
specific risk level determination was made at the time of
sentencing or post-judgment -- are not a "traditional, technical
or integral part of a sentence" that becomes incorporated within
the judgment of conviction (Stevens, 91 NY2d at 276; Kearns, 95
NY2d at 818).1
Accordingly, SORA registration and notification
1
After Stevens was decided, the Legislature amended SORA
to provide the People and the defendant the right to take a civil
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requirements are not reviewable on direct appeal from a judgment
of conviction and are not individually appealable within the
criminal proceeding (Kearns, 95 NY2d at 818).
We agree with the Appellate Division that GORA's
registration and notice requirements, like SORA's, are not a
"traditional, technical or integral" part of defendant's sentence
or subsumed within the judgment of conviction.
Notably, neither
the Penal Law nor the Criminal Procedure Law directs or
authorizes a sentencing court to impose GORA registration as part
of a defendant's sentence.
If the sentencing court here had
omitted advising defendant of his obligation to register as a gun
offender, defendant would have nonetheless remained obligated to
register under the terms of GORA (see Administrative Code of City
of NY § 10-603 [a] ["A gun offender shall register with the
department at the time sentence is imposed"]).
In other words,
pursuant to the terms of GORA, the registration of a gun offender
is an administrative matter between the City of New York, the
NYPD, and the offender, not a component of a gun offender's
sentence to be imposed by the sentencing court.
Defendant's reliance on Nieves (2 NY3d 310) and People
v Hernandez (93 NY2d 261 [1999]) is misplaced.
In both cases, we
concluded that the matter sought to be appealed -- initial
appeal challenging a risk level determination (see Correction Law
§ 168-d [3]; L 1999, ch 453, § 6; see also Kearns, 95 NY2d at
818).
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No. 213
certification as a sex offender by the trial court upon
conviction and orders of protection issued during a sentencing
proceeding -- were part of the judgment of conviction and
therefore appealable (Nieves, 2 NY3d at 312; Hernandez, 93 NY2d
at 267-268).
Significantly, in both cases, the challenged issues
were "actually and temporally" part of the judgment of conviction
(Hernandez, 93 NY2d at 270; see also Nieves, 2 NY3d at 315 ["CPL
530.13 (4) authorizes a court to issue permanent orders of
protection for the benefit of victims and witnesses '[u]pon
conviction of any offense.'
By using this language, the
Legislature signaled that orders of protection issued at
sentencing are part of the final adjudication of the criminal
action involving defendant"]).
Moreover, certification as a sex
offender upon conviction and orders of protection issued at the
time of sentencing are made part of the order of commitment,
which is incorporated into the certificate of conviction (see
e.g. Kearns, 95 NY2d at 818).
Notably, the GORA registration and
notice requirements do not appear on defendant's "Uniform
Sentence and Commitment" form, further supporting our conclusion
that such requirements are not part of a defendant's sentence.
In short, like SORA registration and notice
requirements,2 GORA registration and accompanying notice
2
The distinction between SORA registration and notice
requirements, which we have held to be not part of a judgment of
conviction and thus not appealable, and the initial certification
as a sex offender by the trial court upon conviction, which we
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requirements cannot be deemed a technical or integral part of a
defendant's sentence nor be incorporated into the judgment of
conviction.
Accordingly, GORA registration is not reviewable on
direct appeal from a judgment in a criminal proceeding.
Defendant further argues that GORA is preempted by
Executive Law § 259-a.
Because we conclude, as did the Appellate
Division, that the imposition of GORA registration is not
reviewable on direct appeal, we need not reach that argument.
We
observe, however, that there are appropriate means by which GORA
could be challenged as preempted by state law, including a CPLR
article 78 proceeding or a declaratory judgment action.
Accordingly, the order of the Appellate Division should
be affirmed.
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Order affirmed. Opinion by Judge Ciparick. Chief Judge Lippman
and Judges Graffeo, Read, Smith, Pigott and Jones concur.
Decided December 16, 2010
have held comprises part of a sentence, is clearly articulated in
People v Hernandez (93 NY2d at 270).
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