Motion to Vacate Defendant’s Adjudication as a Sex OffenderUpon the foregoing papers, the defendant’s Motion is decided as indicated in the accompanying memorandum decision.MEMORANDUMThe defendant was charged under this indictment with Robbery in the First and Second Degrees, Burglary in the First Degree, Criminal Possession of a Weapon in the Second and Third Degrees, Unlawful Imprisonment in the First Degree, Endangering the Welfare of a Child, and Criminal Possession of Stolen Property in the Third Degree. On January 5, 1998, he entered a plea of guilty to all charges, and on February 11, 1998, was sentenced as a second felony offender to a determinate period of incarceration of ten years on the top count, with the remaining sentences to run concurrently with it. His conviction was affirmed by the Appellate Division (275 Ad2d 800 [2d Dept. 2000]), and leave to appeal to the Court of Appeals was denied (95 NY2d 966 [2000]).In March, 2004, shortly before his release from prison, the defendant received notice from the New York State Board of Examiners of Sex Offenders that he was to appear in court for an assessment of his Sex Offender Registration Act (SORA) risk level. On April 22, 2004, he appeared before Hon. Joseph Grosso for a SORA hearing. At the hearing, Judge Grosso noted that the Board of Examiners had recommended a downward departure from a Risk Level 3 to a Risk Level 1 by virtue of the fact that although the offense was “one of the designated and enumerate[d] offenses” under the law, it did not involve sexual conduct, but rather, “the unlawful imprisonment of an individual less than 17 years of age” (SORA hearing, April 22, 2004, p2). In reliance on this recommendation, and with no opposition from the People, Judge Grosso assessed the defendant to be a Risk Level 1,requiring him to register as a sex offender upon his release from prison and for the next ten years.1At the time of the hearing, the defendant was represented by his attorney, who argued that when his client entered his plea, he was not apprised that he would be adjudicate a SORA offender with attendant registration requirements, so that the SORA designation constituted an ex post facto violation.2 However, counsel did not bring to the Court’s attention the fact that the defendant had not been convicted of the unlawful imprisonment of an individual less that 17 years of age, despite the fact that Judge Grosso had specifically noted that the age component was the basis of the SORA designation in the first place.The defendant was released from prison on May 25, 2004 and since then, has been in compliance with the SORA registration requirements. However, he now moves for an order vacating his SORA adjudication on the ground that he “is not now — and indeed has never been — required to register under SORA because he did not plead guilty to a designated sex offense within the meaning of the statute” (Defendant’s motion, p7). He urges the Court to grant this relief upon its “inherent authority” to “rectify a mistake of law or fact” as well as pursuant to CPLR §2221, “since the court overlooked or misapprehended a matter of fact or law” )id p8).The People oppose the motion, contending: 1) that the defendant was properly adjudicated a sex offender because he was convicted of Endangering the Welfare of a Child, thereby establishing “by clear and convincing evidence that his crimes had two child victims” (People’s Affirmation in Opposition, p8); 2) that under Correction Law (Article 6-C), a defendant’s request for relief is limited to seeking modification of his risk level; and, 3) that the defendant “waived his present claim” by consenting to the downward modification of his risk level. They also claim that the defendant “received a benefit” when they consented to the downward modification of his risk assessment level from a 3 to a 1, and therefore, “should be bound by the terms of that agreement” (id, p9).In his Reply, the defendant asserts: 1) that the court may not look beyond the defendant’s conviction to determine whether he is a SORA offender; 2) that the court is duty bound to correct the error made in this case; and 3) that the People “cannot be prejudiced for doing what the law did not permit in the first place.”Conclusions of LawIn the opinion of the Court, it is unquestionable that the defendant was erroneously designated a SORA offender. Correction Law §168-a defines a sex offender as “any person convicted of any of the offenses” delineated within the statute. One of these offenses is Penal Law §135.10, Unlawful Imprisonment in the First Degree. However, the statute specifically provides that the charge is only considered a sex offense within its purview if the victim of the offense “is less than seventeen years old…” In the case at bar, the defendant was charged with and convicted of only the unlawful imprisonment of the adult victims in this case, not of the child victims. There was, therefore, no basis for a sex offender designation.It bears noting that the statute clearly provides that a ex offender is a person convicted of a specifically designated offense, not one charged with a delineated offense or, as the People urge in this case, one who could have been so charged. It was the People’s decision not to indict the defendant for unlawful imprisonment of the child victims herein and having failed to do so, they cannot now claim, even under the most strained interpretation of the statute, that the defendant is nevertheless a sex offender as that term is defined under SORA.Having established that the defendant is, indeed, the victim of an error that was made when he was first designated a sex offender, then compounded at the SORA hearing when all of the parties, including his own attorney, incorrectly assumed that the designation was proper, the Court must determine what the appropriate remedy should be. The defendant is asking the Court to rectify the error. The People, however, contend that notwithstanding the error, the designation should stand. Their position is that under the Correction Law, the defendant is entitled only to seek a change in his risk level, not relief from his obligation to register. They also claim that the defendant waived the right to challenge his designation as a SORA offender, and that by consenting to a downward modification of his risk level at the SORA hearing, he “knowingly relinquished he right to challenge his registerability” (People’s Affirmation in Opposition, p8).In the opinion of the Court, the People are correct in their assertion that as a general rule, a defendant may not challenge his designation as a SORA offender after the initial SORA determination has been made, but may only seek to change his risk level. This is so because a SORA designation is not discretionary. Any defendant convicted of an enumerated offense must be designated a SORA offender by the court.3 Therefore, subsequent review is limited to risk assessment because in a typical case, there is not discretion to do anything else. However, in this case, the defendant is not seeking to challenge a discretionary ruling made at his initial SORA hearing. Rather, he is asking the Court to rectify an obvious error in a non-discretionary ruling made by the Court at that hearing.4 While the Court at the initial hearing was obligated to certify the defendant as a sex offender in the event of his conviction of any one of the enumerated offenses listed in statute, the corollary to that requirement is that he was obligated not to certify the defendant as a sex offender if he was not so convicted. The defendant was not convicted of an enumerated offense, and thus the Court had no authority to designate him a sex offender. It bears noting that although the hearing court was aware that only someone convicted of the unlawful imprisonment of a minor could be designated a sex offender, he mistakenly believed that the defendant’s unlawful imprisonment conviction involved children, not adults, in reliance on the misinformation provided by the State Board of Sex Offenders. Neither he nor counsel for the defendant looked at the indictment, which would have obviated this error. Nevertheless, the error was made and in the opinion of the Court, it must be rectified.In reaching the conclusion that the error made by the initial SORA court must be remedied, the Court specifically finds, contrary to the People’s position, that the defendant did not knowingly relinquish his right to challenge his SORA designation by accepting the downward modification of his risk level. It appears clear to the Court that not only did the defendant not know what his rights were at the SORA hearing, but that no one at the hearing knew what they were. As the defendant points out in his Reply Memorandum, he was not certified a SORA offender at the time of his sentence. It was therefore incumbent upon Judge Grosso to make that determination (see, People v. Lockwood, supra; People v. Baluja, supra). Unfortunately, the Court was unaware of his role and in fact, specifically stated, “under Article 168 of the Corrections Law, where the Board of Examiners has made a determination that an individual is obligated to register under Meagan’s Law, my role as the review[ing] court of that recommendation is merely to determine the appropriate risk level” (SORA hearing, April 22, 2004, p5). This was clearly incorrect. Consequently, because the Court was under the mistaken impression that the defendant could not challenge his adjudication as a sex offender, the defendant was denied the opportunity to do so. The sole issue the defendant was permitted to litigate was the level of his risk assessment and in the opinion of the Court, he cannot be deemed to have knowingly waived an issue that he was specifically and improperly prohibited from addressing.Finally, the Court finds that it does have the “inherent power” to correct the mistakes made at the SORA hearing. In People v. Gammon, (19 NY3d 893 [2012]), the Court of Appeals held that it is “well-established” that courts have the “inherent power to correct their records, where the correction relates to mistakes, or errors, which may be termed clerical in their nature, or where it is made in order to conform the record to the truth.” In People v. Minaya, (54 NY2d 360 [1981]), cited in Gammon, the Court held that this “inherent power…exists in criminal as well as civil cases” [id, p364]. And, in Bohlen v. Metropolitan El.Ry.Co., (121 NY 546 [1890]), also cited in Gammon, the Court held that where an amendment “is in the line of the correction of a mistake…obviously due…to the…judge’s oversight, the power to make it is a general and incidental one”).In the case at bar, the Court made an obvious mistake due to an oversight and erroneously designated the defendant a sex offender under SORA. In order to conform the record to the truth, the defendant’s adjudication as a sex offender under Section 168 of the Correction Law must be vacated.Based upon the foregoing, the defendant’s motion to vacate the April 22, 2004 order adjudicating him a level one sex offender is granted.
