| People v Smith |
| 2016 NY Slip Op 01571 |
| Decided on March 3, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on March 3, 2016
Mazzarelli, J.P., Sweeny, Manzanet-Daniels, Gische, JJ.
400 30255/13
v
Tyrone Smith, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel) and Kaye Scholer, LLP, New York (Diana E. Mahoney of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alexander Michaels of counsel), for respondent.
Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered on or about May 20, 2014, which adjudicated defendant a level one sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
The court properly determined that defendant was required to register as a sex offender in New York based on his New Jersey conviction of criminal sexual contact, for which he is undisputedly required to register in New Jersey. Pursuant to Correction Law 168-a(2)(d)(ii), defendant was required to register in New York if his New Jersey conviction was for "a felony in [that] other jurisdiction for which the offender is required to register as a sex offender in [that] jurisdiction." We reject defendant's argument that the New Jersey crime was not a felony for this purpose.
The plain meaning of the word felony in the provision at issue is felony under the other jurisdiction's law; unlike § 168-a(2)(d)(I) there is no requirement of equivalency, or comparison of elements. Although New Jersey's statutory system of classifying offenses does not use the terms felonies or misdemeanors, defendant's conviction carried a possible sentence in excess of one year, and New Jersey, choosing to follow the common-law definition of felony, deems defendant's conviction a felony for that reason (see State v Doyle , 42 NJ 334, 346-349 [1964).
Defendant correctly observes that a potential sentence in excess of one year does not qualify a foreign-jurisdiction conviction as a felony for purposes of sex offender registration in New York. However, what makes defendant's New Jersey crime a felony for these purposes is not its potential sentence, but the fact that New Jersey chooses to deem it a felony, albeit because of its potential sentence, in accordance with the common-law rule.
We have considered and rejected defendant's remaining arguments.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 3, 2016
CLERK