People v Cannon

[*1] People v Cannon 2004 NY Slip Op 51128(U) Decided on August 6, 2004 Supreme Court, Kings County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2004
Supreme Court, Kings County

The People of the State of New York, |

against

Shane Cannon, Defendant.



8640-1998

Michael A. Ambrosio, J.

Pursuant to CPL section 440.20 (1) defendant has filed a motion asking this court to set aside his sentence or in the alternative relieve him of his duty to register as a "sex offender" under the Sex Offender Registration Act (Correction Law section 168-o) ["SORA"].

On April 26, 1999, the defendant entered a guilty plea to attempted kidnaping in the second degree (PL section 110/135.20) and was sentenced on June 28, 1999 to a period of incarceration of 2¼ to 4½ years. The crime to which defendant pled guilty is one of the enumerated offenses subject to SORA (Correction Law section 168-a[2][a][1] - attempted kidnaping of a victim less than 17 years old is a "sex offense" under SORA). On November 1, 2001, this court held a hearing pursuant to SORA and adjudicated the defendant a level one (low risk) sex offender.

Defendant argues that requiring him to register as a sex offender under SORA due to his attempted kidnaping conviction is unconstitutional as applied to him. He claims that classifying him as a sex offender when he was convicted of an offense devoid of sexual misconduct violates his due process and equal protection rights under the Fourteenth Amendment to the United States Constitution and the New York State Constitution.

In support of his position, the defendant relies on People v. Bell, 3 Misc.3rd 773 (2003), a trial court decision from the Bronx County Supreme Court. Unlike Bell, the defendant in this [*2]case did not raise his constitutional arguments at the SORA hearing. Nor did he subsequently seek to appeal that determination. Rather, approximately three years after his SORA determination he seeks to challenge the registration requirements imposed upon him by SORA pursuant to CPL article 440. That is improper. Since the SORA determinations are not properly incorporated within a sentence or judgment, they are not properly reviewable pursuant to CPL article 440 (see, People v. Stephens, 91 NY2d 270, 276 - "SORA risk determination is not a traditional, technical or integral part of a sentence that somehow related back or becomes incorporated into the antecedent judgment of conviction]; also see, People v. Kearns 95 N.Y. 2d 816). Defendant's remedy was to pursue a civil appeal of his SORA determination (see, Correction Law section 168-d[3]).

Accordingly, since defendant's motion is not properly before this court his motion is denied in its entirety.

This Constitutes the Decision and Order of the Court.

E n t e r

_______________________________

Michael A. Ambrosio