People v BuyundPeople v Buyund
v
Donovan Buyund, Respondent.
Argued October 6, 2021; decided November 23, 2021
People v Buyund, 179 AD3d 161, reversed.
Cannataro, J.
On this appeal, we are asked to determine whether the illegal sentence exception to the preservation requirement applies when a defendant first raises on intermediate appeal a challenge to the legality of his certification as a sex offender subject to the requirements of the Sex Offender Registration Act (SORA) (
I.
In June 2014, defendant Donovan Buyund entered the apartment of the victim while she slept. Defendant placed his hаnd over her mouth and his forearm on her chest, obstructing her breathing. Defendant exposed his penis and attempted to insert it into her vagina and mouth. As the victim tried to flee, she struggled with defendant and fell down a staircase.
Defendant was charged by indictment with burglary in the first degree as a sexually motivated felony (
Supreme Court thereafter sentenced defendant to the promised prison term and postrelease supervision requirement.
On appeal to the Appellate Division, defendant argued for the first time that his certification as a sex offender was unlawful because his crime of conviction is not an enumerated registerable sex offense under
The dispute at the Appellate Division focused on a 2007 amendment to the Correction Law, enacted as part of the Sex Offender Management and Treatment Act (SOMTA) (L 2007, ch 7, as amended) in order “to enhance public safety by allowing the State to continue managing sex offenders upon the expiration of their criminal sentences” (see Governor‘s Program Bill Mem, Bill Jacket, L 2007, ch 7 at 5, 2007 NY Legis Ann at 7; Senate Introducer‘s Mem in Support, Bill Jacket, L 2007, ch 7 at 15). As relevant here, the legislature amended the definition of a SORA-registerable “sex offense” in
“(a) (i) a conviction of or a conviction for an attempt to commit any of the provisions of sections 120.70, 130.20, 130.25, 130.30, 130.40, 130.45, 130.60, 230.34, 230.34-a, 250.50, 255.25, 255.26 and 255.27 or article two hundred sixty-three of the penal law, or section 135.05, 135.10, 135.20 or 135.25 of such law relating to kidnapping offenses, provided the victim of such kidnapping or related offense is less than seventeen years old and the offender is not the parent of the victim, or section 230.04, where the person patronized is in fact less than seventeen years of age, 230.05, 230.06, 230.11, 230.12, 230.13, subdivision two of section 230.30, section 230.32, 230.33, or 230.34 of the penal law, or section 230.25 of the penal law where the person prostituted is in fact less than seventeen years old, or (ii) a conviction
of or a conviction for an attempt to commit any of the provisions of section 235.22 of the penal law, or (iii) a conviction of or a conviction for an attempt to commit any provisions of the foregoing sections committed or attempted as a hate crime defined in section 485.05 of the penal law or as a crime of terrorism defined in section 490.25 of such law or as a sexually motivated felony defined in section 130.91 of such law” (emphasis added).
The 2007 amendment added the phrase “or as a sexually motivated felony defined in section 130.91 of such law,” which is the language at the heart of the parties’ dispute below.1 Defendant argued that the added language limits the SORA-registerable crime of a sexually motivated felony to only those specified felonies that are both defined in section 130.91 and one of the “foregoing sections” of the Penal Law cited in subparagraphs (i) and (ii) of
The Appellate Division agreed with defendant that under the “clear and unambiguous” language of
Only after its statutory analysis did the Appellate Division address prеservation. As to preservation, the Court stated that defendant‘s certification and the requirement that he register as a sex offender “violated his right to be sentenced as provided by law” (id., citing People v Fuller, 57 NY2d 152, 156 [1982]), thereby impliedly holding that SORA certification is part of the sentence. The Court modified the judgment by vacating the requirements that defendant register as a sex offender and pay the sex offender registration fee, and otherwise affirmed (id. at 171).
A Judge of this Court granted the People leave to appeal (35 NY3d 1043 [2020]).
II.
Before this Court, the People assert that defendant failed to preserve his claim that he was not subject to certification as a sex offender under SORA. They argue that certification pursuant to SORA is not part of the sentence and, thus, a challenge to certification does not fall within the illegal sentence exception and, moreover, doеs not survive a valid waiver of the right to appeal.
“Because this Court‘s jurisdiction is limited to review of issues of law, our first task is to assess whether the arguments raised on appeal present questions that were preserved by specific objection in the trial court” (People v Nieves, 2 NY3d 310, 315 [2004]). “We have recognized ‘a narrow exception to the preservation rule’ where a court exceeds its powers and imposes a sentence that is illegal in a respect that is readily discernible from the trial record” (id. [citation omitted], quoting People v Samms, 95 NY2d 52, 56 [2000]; see People v Santiago, 22 NY3d 900, 903-904 [2013]). However, “not all claims arising during a sentencing proceeding fall within the exception” (Nieves, 2 NY3d at 315).
The applicability of the exception here depends on whether SORA certification is part of the sentence. In People v Hernandez, we held that certification as a sex offender was appealable
The Court revisited Hernandez in People v Smith, which established that registration and notice requirements under New York City‘s Gun Offender Registration Act (GORA) “cannot be deemed a technical or integral part of a defendant‘s sentence nor be incorporated into the judgment of conviction” (15 NY3d 669, 674 [2010]).4 Both Hernandez and Smith state that a convicted defendant can appeal their SORA certification as a component of the judgment of conviction. In dicta contained in a footnote, the Smith Court further stated that certification as a sex offender under SORA “comprises part of a sentence” (15 NY3d at 674 n 2). This observation, however, was an overly expansive interpretation of the holding in Hernandez that certification as a sex offender is appealable as part of the judgment of conviction. In any event, the dicta in Smith, in addition to being unnecessary for resolution of the issues in Smith, did not expand upon the holding of Hernandez.
People v Nieves, involving orders of protection, is also instructive on the question of which claims fall within the illegal
Similarly, here, sex offender certification is effectuated by the court pursuant to
Our conclusion is supported by People v Gravino, in which we held that SORA registration and the terms and conditions of probation are collateral, rather than direct, consequences of
From the foregoing, it is evident that the entire SORA statutory scheme is designed to have a remedial and nonpenal effect. Significantly, SORA and its resultant obligations are not characterized as components of sentencing in the Criminal Procedure Law or referred to in title E of the Penal Law as a permissible sentence. Moreover, under
Accordingly, the order insofar as appealed from should be reversed and the case remitted to the Appellate Division, Second Department for further proceedings in accordance with the opinion herein.
Wilson, J. (dissenting). The criminal laws itemize impermissible conduct and specify the consequences, sometimes quite serious, for violations. When a defendant is convicted of a crime, the court рrescribes a sentence, constrained by what the legislature has specified. If a defendant‘s sentence is not within the bounds set out by the legislature, that defendant has a right to correction on appeal.
Donovan Buyund pleaded guilty to burglary in the first degree as a sexually-motivated felony. The legislature has not included that crime among those listed as requiring certification under the Sex Offender Registration Act (SORA). Nevertheless, at sentencing the court certified Mr. Buyund as a sex
Several things have gone wrong in this case. Those are not good reasons to evade stare decisis:
- Mr. Buyund broke into his victim‘s home and attempted to rape her; she was able to fight him off. Should that crime be registerable under SORA? Probably—but that‘s not our job. For whatever reason—deliberate choice or inadvertence or careless drafting—the statutory language is quite clear that the crime of sexually-motivated burglary is not statutorily specified as a crime to which SORA applies.
- Mr. Buyund was charged not just with the noncertifiable crime of sexually-motivated burglary, but also with, among other things, attempted rape in the first degree (
Penal Law §§ 110.00 ,130.35 [1] ) and attempted criminal sexual act in the first degree (Penal Law §§ 110.00 ,130.50 [1] ), both of which are crimes that require SORA certification. Had the People offered a plea to one of those crimes, instead of (or in addition to) sexually-motivated burglary, and Mr. Buyund accepted, this appeal would not exist. Mr. Buyund could have received the same exact sentence had he pleaded to either of those crimes, and his SORA certification would be unquestioned. - Nothing in the record suggests that the People, defense counsel or the sentencing court recognized that the crime to which Mr. Buyund pleaded was not subject to SORA.
- The People intimate that they did not want to offer Mr. Buyund this plea, and that the court pressured them to accept it (the implication being that, even though the People did not realize that the crime of conviction was not SORA-certifiable, they would have required him to stand trial or plead to other crimes that, as luck would have had it, were SORA-certifiable).
- Mr. Buyund does not want his entire plea vacated—he just wants the SORA certification stricken.
In these highly unusual circumstances (but not in the bad check circumstance), the proper way to resolve this appeal is to disregard Mr. Buyund‘s preference for vacating just his SORA cеrtification, and instead vacate his plea entirely. That would permit the People to re-prosecute him and seek a conviction, by plea or trial, to a SORA-certifiable crime with which he was charged. The proper remedy should not be determined by Mr. Buyund‘s wishes. If, on the other hand, Mr. Buyund means that he would rather withdraw his appeal than have his entire plea vacated, we should simply treat his appeal as withdrawn.
Instead, the majority disposes of the case on a preservation theory that both misinterprets our prior case law and throws the erroneously sentenced bad-check passer under the preservation steamroller. Because SORA registration is part of the sentence, if it has been unlawfully attached to a crime to which SORA does not apply, thе sentence is illegal and appealable without preservation.
I.
Mr. Buyund was unlawfully certified as a sex offender because the crime to which he pleaded guilty—burglary in the first degree as a sexually-motivated felony—is not among the exclusive list of crimes that require sex offender certification. SORA defines as a “sex offender” any person who is convicted of a “sex offense” or a “sexually violent offense” as those terms are defined by the statute (
The People offer an interpretation of the Correction Law that would remove the statutory limit on the kinds of sexually-motivated felonies that count as registerable sex offenses. To arrive at the People‘s interpretation, one would need to add a “(iv)” and strike “as” before “a sexually motivated felony.” That is not how the statute reads.
Neither the People nor this Court сan redraft the unambiguous provisions in the Correction Law; that is the legislature‘s job. As the Appellate Division unanimously concluded, the statute is not ambiguous. The plain meaning of the words in the statute is that “a conviction of or a conviction for an attempt to commit any provisions of the foregoing sections” (i.e., subparagraphs [i] and [ii]) “committed . . . as a sexually motivated felony” is a “sex offense” for SORA purposes. When a statute is clear and unambiguous, courts must give effect to its plain meaning (People ex rel. Negron v Superintendent, Woodbourne Corr. Facility, 36 NY3d 32 [2020]; People v Finnegan, 85 NY2d 53, 58 [1995]). The statutory text is the clearest indicator of legislative intent and must be the starting point for any case of legislative interpretation (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]). When the words of a statute have a “definite mеaning, which involves no absurdity or contradiction, then there is no room for construction and courts have no right to add or take away from that meaning” (People v Roberts, 31 NY3d 406, 418 [2018]).
Mr. Buyund pleaded to burglary in the first degree as a sexually-motivated felony, but because burglary in the first degree is not enumerated in subparagraphs (i) or (ii), his sexually-motivated felony does not constitute a “sex offense” that requires him to register as a sex offender. The majority avoids the statute‘s plain language by holding that Mr. Buyund cannot raise the error on direct appeal because he failed to object to it at sentencing.
Mr. Buyund argues that he was improperly certified as a sex offender and that the improper certification constitutes an unlawful sentence, triggering the exception to the general preservation rulе. The majority holds that Mr. Buyund‘s claim does not fall under the unlawful sentence exception to the general preservation rule because it believes certification as a sex offender, though part of a defendant‘s judgment of conviction, is not part of a defendant‘s sentence.1 I disagree.
Generally, questions of law regarding rulings or instructions of a criminal court must be preserved for our Court to decide them. A defendant preserves a question of law “when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same” (
The preservation rule, however, is not absolute; we have identified a variety of important exceptions to the rule, recognizing that certain arguments and claims must have an ear in appellate courts even if they were not properly objected to in criminal court. One exception, relevant here, is triggered when the alleged error “involve[s] the ’ “essential nature” of the right to be sentenced as provided by law’ ” (People v Samms, 95 NY2d 52, 56 [2000], quoting People v Letterlough, 86 NY2d 259, 263 n 1 [1995]; see also People v Fuller, 57 NY2d 152, 156 [1982]). Thus, when a defendant claims a criminal sentence imposed is unlawful, that claim—a pure claim of law—requires no preservation (id.).
Our precedent makes clear that certification as a sex offender under SORA is part of a defendant‘s sentence. The cases cited by the majority for its determination that SORA certification is not part of the sentence demonstrate the opposite.
We have previously explained that the initial certification as a sex offendеr by the criminal court upon conviction “comprises
In People v Hernandez, we held that certification under SORA is appealable and reviewable on direct appeal (93 NY2d 261, 267 [1999]). The majority misreads Hernandez as “le[aving] open the question of whether certification was part of a defendant‘s sentence” (majority op at 538). In Hernandez, we recognized that the SORA certification “was treated and deemed by the [criminal] court as part of the plenary adjudication of defendant‘s conviction and sentence” (93 NY2d at 268). The People advanced two arguments to justify their position that SORA certification was not appealable; we rejected both as follows:
“The People, on the othеr hand, characterize SORA certification as a nonsentence consequence of the conviction, a feature they also refer to as merely regulatory. The People additionally urge that appellate review of the dispositions prescribed under the Penal Law is distinguishable from what occurred here. This argument is unavailing because that formalistic regimentation would categorically preclude authorization for appellate review of SORA certifications merely as a result of their being prescribed within the Correction Law. We conclude that these positions and the reasons urged for them are not supportable in these circumstances” (id.).
In rejecting the People‘s argument that SORA certification is a nonsentence consequеnce of the conviction, we necessarily held that it is part of the sentence; no other interpretation is possible.
III.
We have distinguished between SORA‘s certification and its other requirements, and that distinction is key to understanding what our prior decisions say about which aspects of SORA are part of a criminal sentence. SORA‘s registration and risk-level determination requirements are not part of a sentence; SORA certification is.
The SORA process has different components. First, a defendant convicted of a crime that is a registerable SORA offense is “certified” as a sex offender by the court upon conviction (
“[t]he 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 have held comprises part of a sentence, is clearly articulated in People v Hernandez” (15 NY3d at 674 n 2 [citation omitted]).
The distinction between certification and the other requirements under SORA is further evident in cases that followed Hernandez. In People v Gravino, we held that “because they are collateral rather than direct consequences of a guilty plea, Sex Offender Registration Act (SORA) registration and the terms and conditions of probation are not subjects that a trial court must address at the plea hearing” (14 NY3d 546, 550, 558 [2010]). The majority uses the Gravino holding to argue that “the entire SORA statutory scheme is designed to have a remedial and nonpenal effect,” rendering all of SORA, including
“The extent and nature of the conditions imposed оn a SORA registrant—i.e., the consequences of SORA registration—turn upon the risk classification. . . . These consequences are not known at the time a court accepts a guilty plea, and therefore cannot have a ’ “definite, immediate and largely automatic effect on [a] defendant‘s punishment” ’ ” (14 NY3d at 556, citing People v Catu, 4 NY3d 242, 244 [2005], quoting People v Ford, 86 NY2d 397, 403 [1995]).
The same year as Gravino, we reemphasized the distinction between SORA certification and its other components in People v Smith (15 NY3d 669 [2010]). In Smith, we held that the registration and notice requirements of the Gun Offender Registration Act (GORA) were not “part of [a] defendant‘s sentence or subsumed within the judgment of conviction” (id. at 673). In reaching that decision, we specifically compared the GORA registration and notice requirements to those requirements in the SORA context, highlighting “[t]he distinction between SORA registration and notice requirements,” which are not аppealable, and “the initial certification as a sex offender,” which is (id. at 674 n 2).
The majority deems “impractical and unworkable” any “attempt to isolate the[se] . . . component parts of SORA—certification, registration, risk-level determination, and notification requirements—and deem the court‘s initial certification to be
IV.
It can be easy to lose track of the stakes at hand when our decisions, as this one, conclude an issue is unpreserved—even though all that is involved here is the interpretation of a statute that is quite clear on its face. The legislature has clearly and unambiguously itemized an exclusive list of offenses that are registrable sex offenses (
No one at sentencing appears to have realized that the crime to which Mr. Buyund pleaded did not subject him to SORA. In a way, this case asks on whom that burden should fall. The majority says it shоuld fall on Mr. Buyund. At least equally plausible, though, is that it should fall on the People: if they want a defendant to be subject to SORA, they should not agree to a plea to a crime that does not provide for SORA registration. Or perhaps the burden should fall on the sentencing court, to make sure that the crime of conviction is SORA-registerable if the plea agreement depends on that. A plea agreement is, essentially, a contract, though one with constitutional provisions built in to protect the defendant. Even in an ordinary contract, when all the parties operate under a mutual mistake, the contract is voided and the parties are placed back in their pre-contract positions. That—rather than deciding that the defendant
Chief Judge DiFiore and Judges Fahey, Garcia and Singas concur; Judge Wilson dissents in an opinion, in which Judge Rivera concurs.
Order insofar as appealed from reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.