How Does a Defendant Become Eligible Under the Sex Offender Registration Act ?
In People v. Buss 11 NY3d 553, 900 N.E.2d 964, 872 N.Y.S.2d 413 (2008), the Court of Appeals applied Penal Law 70.30 (1) (b) to the question of whether Defendant's non-sex offense sentence imposed consecutive to his sex offense sentence made him eligible under the Sex Offender Registration Act ("SORA").
The Court noted that "the primary function of the statute [Penal Law 70.30(1)(b)] is to allow for the ready calculation of parole eligibility".
It then went on to find that, notwithstanding this limitation, it was reasonable to apply the statute to the question of SORA eligibility in the Buss case based on a number of policy considerations.
This Court, in analyzing the Buss decision in its decision in State v. Rashid 25 Misc 3d 318, 883 N.Y.S.2d 435, aff'd 68 AD3d 615, 892 N.Y.S.2d 76 (1st Dept 2009), also noted that the SORA statute itself contained no answer to the sentence calculation question the Court of Appeals considered in Buss.
This Court opined that the Buss decision was reasonable, in part, because there was no clear indication in the SORA statute of how the Legislature viewed the issue. 25 Misc 3d at 331.
In People v. Mills, 11 NY3d 527, 901 N.E.2d 196, 872 N.Y.S.2d 705 (2008) the Court of Appeals did not explicitly analyze Penal Law 70.30 (1) (b).
But it addressed the same issue in the context of determining resentencing eligibility under the 2005 DLRA. There, as noted supra, the Court of Appeals reached a different conclusion than it had reached in Buss.
The Court held that resentencing eligibility under the 2005 DLRA should be considered only with respect to the "same Class A-II felony for which resentencing is sought" rather than by also considering a sentence imposed for a second crime committed years later for which a consecutive sentence had been imposed. 11 NY3d at 537.
In Rashid, as this Court and the First Department found, Penal Law 70.30 (1) (b) also could not be used to bring an ineligible sex offender under the provisions of the sex offender civil management statute because that statute contained its own rule for determining which sentences counted in determining eligibility under the statute.