Legal Question in Criminal Law in New York

See NY Corr. Law 168-a(2)(d) and NYS Division of Criminal Justice Services webpage titled �About the New York State Sex Offender Registration Act (SORA)� which states in relevant part: �SORA requires the registration of individuals convicted in New York State of certain sex offenses as well as the registration of those individuals convicted in another jurisdiction if the offense is equivalent to a New York State registerable sex offense.� (A copy of said webpage can be found at http://www.criminaljustice.state.ny.us/nsor/legalinfo.htm.

When determining whether an out-of-state criminal proceeding resulted in a conviction, New York cases have consistently held that the law of the other state controls.

People v. Bell, 82 Misc.2d 1021, 372 N.Y.S.2d 169 (1975) provides analogous guidance. In Bell, the issue was whether the defendant could be sentenced in New York as a second felony offender because defendant faced a prior felony charge in Florida but the Florida court had withheld adjudication of guilt and imposition of sentence and placed defendant on probation. The Honorable John Lockman held that a Florida acknowledgment of guilt with adjudication thereof withheld does not constitute a conviction for purposes of New York�s prior felony offender sentencing requirements.

J. Lockman observed that �[t]he Florida Legislature had the power to allow its courts to determine whether to withhold an adjudication of guilt in the interests of justice and in order to prevent branding the individual as a convicted criminal with consequent loss of civil rights and other damning consequences� Id.

Therefore, the Bell case establishes that it is not considered a conviction for purposes of New York law where, as here, a defendant acknowledges guilt in another state but, pursuant to said state�s laws, the guilty finding is not entered but instead withheld.

In another case involving Florida law, the Oneida County Supreme Court also noted that a Florida court�s withholding of an adjudication of guilt upon a plea of guilty cannot be considered a prior conviction for purposes of finding a defendant to be a second-felony offender under New York law. People ex rel. Lesnowski v. Von Holden, 107 Misc.2d 581, 435 N.Y.S.2d 620 (1980).

Likewise, in People v. Willis, 79 A.D.2d 1036, 435 N.Y.S.2d 38 (2nd Dept. 1981) it was held that where the defendant�s probation, following his guilty plea to possession of marijuana in Texas, was discharged upon his application to the Texas courts, and as a result his Texas guilty plea was allowed to be withdrawn and his indictment dismissed, defendant, upon conviction for criminal possession of a controlled substance in New York, was a first-felony offender.

John Campbell, Esq

White Plains, NY

914-837-1800