Opinion
KA 02-02663
October 2, 2003.
Appeal from an order of Supreme Court, Erie County (Wolfgang, J.), entered February 25, 2002, which denied the petition and assigned defendant a risk level of one under the Sex Offender Registration Act.
TERRANCE C. BRENNAN, GRAND ISLAND, FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (ERIC A. JOHNSON OF COUNSEL), FOR INTERVENOR-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, WISNER, SCUDDER, AND KEHOE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by dismissing the petition and as modified the order is affirmed without costs.
Memorandum:
Following his conviction in Florida of lewd or lascivious exhibition (Fla Stat Ann 800.04), a felony under Florida law for which defendant was required to register as a sex offender ( see Fla Stat Ann 943.0435), defendant moved to New York. The New York State Board of Examiners of Sex Offenders (Board) determined that, due to the Florida conviction, defendant was required to register as a sex offender in New York pursuant to the Sex Offender Registration Act (Correction Law art 6-C), and thereafter Supreme Court notified defendant of his right to a hearing to determine his risk level classification ( see Correction Law 168-k). During the course of that proceeding defendant filed a petition seeking to vacate the Board's determination that he is required to register as a sex offender in New York. Defendant contends in his petition that, had he committed in New York the acts underlying his conviction in Florida, he would not have been required to register as a sex offender in New York, and thus requiring him to register violates his federal and state constitutional rights to equal protection. The court denied the petition and assigned defendant a risk level of one. Having notified the Attorney General of defendant's constitutional challenge ( see Executive Law 71), we now conclude that the court lacked subject matter jurisdiction to entertain defendant's petition.
Initially we note that, inasmuch as a court's lack of subject matter jurisdiction may be raised at any stage of the proceedings, the issue is properly raised for the first time on this appeal ( see Matter of Fry v. Village of Tarrytown, 89 N.Y.2d 714, 718). Defendant challenges the determination of the Board that he is required to register as a sex offender. However, the Board is the administrative agency that is statutorily empowered to make that determination ( see Correction Law 168-k). The role of the court is limited to assigning defendant a risk level classification and determining whether defendant is a sexual predator ( id.). A challenge to the Board's initial determination that a defendant is a registerable sex offender constitutes a challenge to a determination of an administrative agency and is not properly raised in the subsequent court proceeding involving the separate and distinct risk level determination ( see Matter of Mandel, 293 A.D.2d 750, appeal dismissed 98 N.Y.2d 727). The proper procedure for challenging the constitutionality of the Board's initial determination that the defendant is required to register is a CPLR article 78 proceeding ( see Mandel, 293 A.D.2d at 750; see generally Stahlbrodt v. Commissioner of Taxation Fin. of State of N.Y., 171 Misc.2d 571, 576, affd 246 A.D.2d 793, mod on other grounds 92 N.Y.2d 646; Matter of R G Outfitters v. Bouchard, 101 A.D.2d 642, 643). Similarly, the proper procedure for challenging the facial validity of the statute is a declaratory judgment action ( see Stahlbrodt, 171 Misc.2d at 575; Matter of R G Outfitters, 101 A.D.2d at 643). Because the court lacked subject matter jurisdiction to review the determination of the Board that defendant was required to register as a sex offender, the petition should have been dismissed, and we therefore modify the order by dismissing the petition. The order insofar as it assigns a risk level of one is affirmed.