SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
572
KA 12-00365
PRESENT: SCUDDER, P.J., SMITH, CENTRA, AND LINDLEY, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ROGER L. HUEBER, DEFENDANT-APPELLANT.
PATRICIA M. MCGRATH, LOCKPORT, FOR DEFENDANT-APPELLANT.
ROGER L. HUEBER, DEFENDANT-APPELLANT PRO SE.
MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Niagara County
(Richard C. Kloch, Sr., A.J.), rendered January 5, 2012. The judgment
convicted defendant, upon a nonjury verdict, of failure to register a
change of address.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of failure to register a change of address as a
sex offender (Correction Law § 168-f [4]), arising from the discovery
by members of the Niagara Falls Police Department that no one resided
at the address defendant had registered with the Division of Criminal
Justice Services. Insofar as defendant contends that Supreme Court’s
determination after the suppression hearing that he had an expectation
of privacy at the registered address rendered the evidence at trial
legally insufficient as a matter of law to establish that he failed to
“register with the division no later than ten calendar days after any
change of address” (id.), defendant failed to preserve that contention
for our review (see People v Gray, 86 NY2d 10, 19). In any event,
that contention is without merit because, even accepting that
defendant had an expectation of privacy at the registered address, the
evidence submitted at trial pursuant to the parties’ stipulation is
legally sufficient to establish that the house was vacant and
defendant was living elsewhere (see generally People v Bleakley, 69
NY2d 490, 495).
Defendant further contends that the court erred in denying his
motion to dismiss the indictment because the local sex offender
residency ordinances restricting his ability to find housing were
preempted by state law or were otherwise unconstitutional. We reject
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KA 12-00365
that contention. Inasmuch as defendant was charged with and convicted
of a violation of Correction Law § 168-f (4) rather than a local
ordinance, the local ordinances are not applicable herein.
To the extent that defendant contends in his pro se supplemental
brief that defense counsel’s failure to preserve certain contentions
for our review deprived him of his right to effective assistance of
counsel, that contention involves matters outside the record on appeal
and must be raised by way of a motion pursuant to CPL article 440 (see
People v Stachnik, 101 AD3d 1590, 1591, lv denied 20 NY3d 1104).
Finally, we have reviewed the remaining contentions raised by
defendant in his pro se supplemental brief and conclude that they are
not preserved for our review (see generally Gray, 86 NY2d at 19), and
we decline to exercise our power to review them as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).
Entered: June 14, 2013 Frances E. Cafarell
Clerk of the Court