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137 A.D.3d 458

People v. Smith

Appellate Division of the Supreme Court of the State of New York · decided 2016-03-03

Decided 2016-03-03

¶1 Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered on or about May 20, 2014, which adjudicated defendant a level one sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

¶2 The court properly determined that defendant was required to register as a sex offender in New York based on his New Jersey conviction of criminal sexual contact, for which he is undisputedly required to register in New Jersey. Pursuant to Correction Law § 168-a (2) (d) (ii), defendant was required to register in New York if his New Jersey conviction was for “a felony in [that] other jurisdiction for which the offender is required to register as a sex offender in [that] jurisdiction.” We reject defendant’s argument that the New Jersey crime was not a felony for this purpose.

¶3 The plain meaning of the word felony in the provision at issue is felony under the other jurisdiction’s law; unlike section 168-a (2) (d) (i) there is no requirement of equivalency, or comparison of elements. Although New Jersey’s statutory system of classifying offenses does not use the terms felonies or misdemeanors, defendant’s conviction carried a possible sentence in excess of one year, and New Jersey, choosing to fol *459 low the common-law definition of felony, deems defendant’s conviction a felony for that reason (see State v Doyle, 42 NJ 334, 346-349 [1964]).

¶4 Defendant correctly observes that a potential sentence in excess of one year does not qualify a foreign-jurisdiction conviction as a felony for purposes of sex offender registration in New York. However, what makes defendant’s New Jersey crime a felony for these purposes is not its potential sentence, but the fact that New Jersey chooses to deem it a felony, albeit because of its potential sentence, in accordance with the common-law rule.

¶5 We have considered and rejected defendant’s remaining arguments.

Concur—Mazzarelli, J.P., Sweeny, Manzanet-Daniels and Gische, JJ.
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