SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
106
KAH 11-00078
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK EX REL.
SCOTT MORSE, PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
JAMES L. BERBARY, SUPERINTENDENT, COLLINS
CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.
CHARLES J. GREENBERG, BUFFALO, FOR PETITIONER-APPELLANT.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARLENE O. TUCZINSKI
OF COUNSEL), FOR RESPONDENT-RESPONDENT.
Appeal from a judgment (denominated order) of the Supreme Court,
Erie County (M. William Boller, A.J.), entered November 16, 2010 in a
habeas corpus proceeding. The judgment dismissed the petition.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Memorandum: Petitioner commenced this proceeding seeking a writ
of habeas corpus, alleging that his detention was illegal and that he
is entitled to immediate release from detention because he did not
receive due process when in 1998 he was assessed a level two sex
offender under the Sex Offender Registration Act ([SORA] Correction
Law § 168 et seq.). According to petitioner, his initial risk
assessment was improper. Thus, he contends that he should not have
been required to comply with SORA’s registration requirements and that
the charges stemming from his failure to do so, along with the bail
jumping charge “would never have existed.” Supreme Court properly
dismissed the petition. Habeas corpus relief is unavailable here
inasmuch as petitioner could have raised the instant issue on direct
appeal or by way of a motion under CPL article 440 (see People ex rel.
Robinson v Graham, 68 AD3d 1706, lv denied 14 NY3d 706). Moreover,
petitioner would not be entitled to immediate release from detention
even if he were to prevail with respect to SORA because the crime of
bail jumping is unrelated to SORA (see generally People ex rel.
Douglas v Vincent, 50 NY2d 901, 903). Finally, we conclude that
petitioner was not a member of the class of plaintiffs covered by the
stipulation in Doe v Pataki (427 F Supp 2d 398, 402-403, vacated 481
F3d 69) who were entitled to a redetermination of their risk
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KAH 11-00078
assessment level.
Entered: February 10, 2012 Frances E. Cafarell
Clerk of the Court