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New York Sex Offender Registration Determination is Exception to Article 78 Review

The New York Court of Appeals, the state’s highest court, has held that a determination as to whether a crime committed in another state triggers New York sex offender registration is reviewable in a proceeding to determine the offender’s risk level.

New York’s Sex Offender Registration Act (SORA) requires registration by people who commit sex offenses in other states before moving to New York. Until 2002, a crime committed in another state triggered registration “only if it included ‘all of the essential elements’ of a New York ‘felony.’” In 2002, however, “felony” was replaced with the term “crime” for offenses “committed on or after” the amendment’s effective date.

The trial court determines both registrability and risk level for New York sex offenders. However, for out-of-state offenders, the Board of Examiners of Sex Offenders (Board) determines registrability while the court determines the risk level.

SORA does not specify how someone who is required to register for an out-of-state sex offense may challenge a registration determination. Ordinarily, judicial review under CPLR article 78 is the exclusive remedy for challenging actions of New York administrative agencies. An article 78 review must be brought within four months of the challenged action.

In 1996, Scott Liden was convicted of several sex-related offenses in Washington State, then later moved to New York. The Board eventually learned of Liden’s Washington convictions and determined in 2007 that he was required to register under SORA. Liden did not seek an article 78 review of that determination.

As required by SORA, the Board recommended to the trial court that Liden be assigned risk level 3 due to a high reoffense risk. Liden argued that he should not be required to register at all because his Washington offenses did not constitute a New York felony. The state agreed, but the court held “that it did not ‘have jurisdiction to review’ the Board’s determination.” The court then designated Liden a level 3 offender and the appellate division affirmed.

The Court of Appeals reversed, holding that the “case calls for an exception to [article 78’s] rule of exclusivity.” The Court determined that “registrability can be considered in the risk level proceeding,” because “to bar the risk level court from examining registrability may put that court in the uncomfortable position of deciding the risk level of someone who, the court is convinced, is not a sex offender within the meaning of the statute at all.” See: People v. Liden, 19 N.Y.3d 271, 969 N.E.2d 751 (N.Y. 2012).

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Related legal case

People v. Liden