Opinion
06-09-2017
The PEOPLE of the State of New York, Respondent, v. Kevin ROCKTASCHEL, Defendant–Appellant.
Maynard Law Office, LLC, Morristown, New Jersey (James H. Maynard, of The New Jersey Bar, Admitted Pro Hac Vice, of Counsel), for defendant-appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Matthew B. Powers of Counsel), for respondent.
Maynard Law Office, LLC, Morristown, New Jersey (James H. Maynard, of The New Jersey Bar, Admitted Pro Hac Vice, of Counsel), for defendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Matthew B. Powers of Counsel), for respondent.
MEMORANDUM:
In 2005, defendant was adjudicated a level one risk pursuant to the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ). In 2016, he moved pursuant to sections 168–h(1) and 168–o (1) to be released from the SORA registration requirements, and he appeals from an order denying that motion. We affirm.
Defendant is "ineligible for relief from SORA's registration requirements, as he has not been registered for at least 30 years" (People v. Pero, 49 A.D.3d 1010, 1011, 853 N.Y.S.2d 683 ; see People v. Shim, 139 A.D.3d 68, 72, 28 N.Y.S.3d 87, lv. denied 27 N.Y.3d 910, 2016 WL 3524984 ; see also People v. Kindred, 71 A.D.3d 1418, 1418, 897 N.Y.S.2d 365 ), and he is not a level two risk (see Correction Law § 168–o [1] ). Insofar as defendant contends that he should not be required to register pursuant to SORA because he has moved to another state, it is well settled that "the establishment of a residence in another state does not relieve petitioner of his SORA registration obligations" (Matter of Doe v. O'Donnell, 86 A.D.3d 238, 242, 924 N.Y.S.2d 684, lv. denied 17 N.Y.3d 713, 2011 WL 4977887 ; see People v. Melzer, 89 A.D.3d 1000, 1001, 933 N.Y.S.2d 705, lv. denied 19 N.Y.3d 803, 2012 WL 1592151, rearg. denied 19 N.Y.3d 954, 950 N.Y.S.2d 101, 973 N.E.2d 199 ). Defendant's constitutional challenges to SORA are not properly before us because there is no indication in the record that the Attorney General was given the requisite notice (see Executive Law § 71 ; People v. Jewell, 119 A.D.3d 1446, 1448, 989 N.Y.S.2d 766, lv. denied 24 N.Y.3d 905, 2014 WL 4637185 ; People v. McKeehan, 2 A.D.3d 1421, 1422, 770 N.Y.S.2d 246, lv. denied 3 N.Y.3d 644, 782 N.Y.S.2d 415, 816 N.E.2d 205 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
WHALEN, P.J., SMITH, CENTRA, PERADOTTO, and SCUDDER, JJ., concur.