Petition for Writ of Certiorari — Howard Griffith, Petitioner v. New York

INDEX TO APPENDIX

Exhibit A: “People v Griffith, CLA-2025-00015”

ORDER DENYING LEAVE

April 15, 2025

Exhibit B: “People v Griffith, CLA-2025-00015”

APPLICATION TO REQUEST LEAVE TO APPEAL

(without attachments)

January 2, 2025

Exhibit C: “People v Griffith, CLA-2025-00015”

OPPOSITION TO APPLICATION FOR LEAVE TO APPEAL

February 11, 2025

Exhibit D: “People v Griffith, KA 24-01886”

ORDER DENYING MOTION FOR WRIT OF ERROR CORAM NOBIS

December 9, 2024

Exhibit E: CLEAN SLATE ACT

New York State Assembly

A.1029-C:

“Section 1”

Exhibit F: CLEAN SLATE LAWS:

Utah, Connecticut, California, New York

Exhibit G: “People v. Moss, 2025 NY Slip-Op 01673: Effect of Prior Unchallenged

Conviction on Sex Offender Registration Act (SORA) Risk Level”

Published by New York Law Review in

New York Court of Appeals

Exhibit H: People v Moss, No. 28

New York State Court of Appeals

March 20,2025

OPINION

(uncorrected)

Exhibit A:

“People v Griffith, CLA-2025-00015”

ORDER DENYING LEAVE

April 15, 2025

^totrof Beto ®otk

Court of Sippeats

BEFORE: HON. CAITLIN J; HALLIGAN, Associate Judge

THE PEOPLE OF THE STATE OF NEW YORK,

ORDER

DENYING

LEAVE

Respondent,

-againstHOWARD GRIFFITH,

Appellant.

Appellant having applied for leave to appeal to this Court pursuant to Criminal Procedure

Law § 460.20 from an order in the above-captioned case;*

UPON the papers filed and due deliberation, it is

ORDERED that the application is denied.

Dated:

APR 15 2025

Associate Judge

*Description of Order: Order of the Appellate Division, Fourth Department, entered December 9,

2024, denying defendant's motion for writ of error coram nobis.

Exhibit B:

“People v Griffith, CLA-2025-00015”

APPLICATION TO REQUEST LEAVE TO APPEAL

(without attachments)

January 2, 2025

Howard Griffith

2903 James Street, # 1R

Syracuse, NY 13206

315-726-2958

January 2, 2025

New York State. Court of Appeals

20 Eagle Street

Albany, NY 12207

RE: People v Griffith, KA 24-01886, 2001-0883-1

Subject: Application to Request Leave to Appeal

Attn.: Clerk of the Court

To Whom It Concerns:

This application is being taken from the December 9, 2024 Order of the Supreme Court of

the State of New York, Appellate Division/Fourth Department, for the matter referenced above,

which denied my November 18, 2024 Motion for Writ of Error Coram Nobis which was taken to

obtain an extension of time to take an appeal from the judgment of conviction that was rendered

on January 29, 2002, in the Onondaga County Court, for Rape in the First Degree, Penal Law §

130.35(1), regarding “People v Griffith, 2001-0883-1”. My Motion [ ] demonstrates that I had

been convicted by plea bargain for my conviction for “Rape in the First Degree [ ]” with regard

to “People v Griffith, 2001-0883-1” and that I was sentenced to serve five years of imprisonment

with five years of post-release supervision. I claimed in my Motion [ ] that, with regard to how I

would have been authorized to take an appeal, regarding a claim of ineffective assistance of

counsel at the time of my judgment of conviction, I had not been apprised of my right to appeal.

I also argued that my conviction for “Rape in the First Degree [ ]” was unconstitutional by

demonstrating that the indictment for my conviction was fatally flawed on its face and that my

counsel was ineffective for not moving to dismiss it. (see pages 6-16 of “Exhibit C”) I had

addressed these claims in my Motion [ ] upon which I had also demonstrated that the facts were

in the main record to support that I had been deprived of my right to effective assistance of

counsel during the time that “People v Griffith, 2001-0883-1” was pending. I also demonstrated

that I had previously attempted to address this, via Motionfs] to Vacate Judgment, pursuant to

CPL § 440.10, on several occasions, under which the Onondaga County Court had determined

that these Motion[s] could not be used as a substitute for a direct appeal. To support my

argument that I should be given my right back to take a direct appeal from “People v Griffith,

2001-0883-1”, I supported that CPL § 160.57, with regard to the law that went into effect on

1

November 16, 2024, regarding the “Clean Slate Act”, violated my 5th and 14th Amendment

Rights of the U.S. Constitution and my Rights to the NYS Constitution with regard to §§ 6 and

11 of Article 1 based on my unconstitutional conviction for “Rape in the First Degree [ ]”.

In my Motion for Extension of Time to Take an Appeal on the Common Law of Writ of Error

Coram Nobis, I demonstrated Section 1 of A.1029-C with regard to the bill that was passed in

the New York State Assembly in 2023, regarding the “Clean Slate Act”, upon which it was

demonstrated that the legislative intent for CPL § 160.57 was to establish a “Clean Slate” for

defendants with criminal records, via the “automatic sealing of convictions”, after a period of

time of good behavior, to curb discrimination from defendants in enabling them to obtain jobs.

(see pages 18-19 of “Exhibit C”) I related it to how I should be able to obtain a “Clean Slate” on

June 20, 2026, based on my criminal record, based on my latest misdemeanor conviction, with

regard to CPL § 160.57(1 )(b)(i). However, as 1 had demonstrated, I am shielded from being

provided with these liberties because CPL § 160.57(1 )(b)(v), with regard to the “automatic

sealing of convictions”, provides that the automatic sealing [ ] does not apply to convictions that

are defined as sex offenses or sexually violent offenses under Correction Law § 168-a. I

demonstrated that “Rape in the First Degree [ ]” is listed as a “sexually violent offense” pursuant

to Correction Law § 168-a. I demonstrated that, obviously, when considering CPL § 160.57, in

considering whether or not defendants’ criminal records should be able to be sealed, lawmakers

have considered that defendants who were convicted of sex offenses, sexually violent offenses,

and Class A felonies deserve more discrimination than defendants who were convicted of

different types of offenses. However, when considering CPL § 160.57, in considering that I was

convicted of a “sexually violent offense”, I demonstrated that I should not have to be subject to

more discrimination than defendants who were convicted of offenses other than sex offenses,

sexually violent offenses, or Class A felonies because 1 should never have been convicted of that

offense. Therefore, I claimed that CPL § 160.57 going into effect violates my 5th and 14th

Amendment Rights of the United States Constitution and my Rights to the New York State

Constitution with regard to §§ 6 and 11 of Article I because, unlike other defendants, it keeps me

in a position where I may have to be subject to discrimination that I don't deserve, (see pages

25-26 of “Exhibit C”) I used People v Syville, 15 NY3d 391 (2010) to support my argument that,

upon which the Court of Appeals acknowledged that coram nobis was significantly restricted by

the adoption of the Criminal Procedure Law, the Court acknowledged that the ancient writ

"continues to be available to alleviate a constitutional wrong when a defendant has no other

procedural recourse” (id. at 400) (see pages 24-25 of “Exhibit C”), and I established that, in my

case, coram nobis should be considered to alleviate the constitutional wrong because it will

enable me to be taken out of the position where I may have to be subject to discrimination that I

don’t deserve and that the action is the only procedural recourse because the Onondaga County

Court determined that 1 could not make my argument in a CPL § 440.10 motion, (see pages

25-26 of “Exhibit C”) I demonstrated that coram nobis would be used to give me back my right

to take a direct appeal from my judgment of conviction for “People v Griffith, 2001-0883-1”, and

I demonstrated that overturning my conviction, via direct appeal, would result in my conviction

2

being able to be sealed, pursuant to CPL § 160.50(3), and that CPL § 160.57(l)(b)(v) would no

longer apply to the grounds under which I would be able to obtain my “Clean Slate” to curb the

chances under which I may be subject to discrimination, (see page 25 of “Exhibit C”) I also

referred to “People v. Thomas, 47 N.Y.2d 37, 42 (N.Y. 1979)” to support that I be granted an

extension of time to take an appeal, (see page 17 of “Exhibit C”)

People v Syville, 15 NY3d 391 (2010) was considered by the Court, considering a motion for

extension of time to take an appeal on the common law of writ of coram nobis. People v Syville,

id. at 400 refers to People v Bachert, 69 NY2d 593 (1987) under which it is supported that “ ‘In

its modern context a motion for a writ presupposes a violation of the defendant's constitutional

rights not appearing on the record, no negligence which could be attributed to the defendant for

failure to have brought the alleged error to the attention of the court at the time of the trial, and

further, that the current proceeding is not a substitute for a new trial, appeal or other statutory

remedy’ (id. at 598 [internal quotation marks and citations omitted]). ” (id. at 400) My Motion [

] demonstrates that, in considering how it should be considered that CPL § 160.57 going into

effect violates my constitutional rights, my motion for the writ presupposes a violation of my

constitutional rights not appearing on the record and that no negligence could be attributed to my

failure to have brought the alleged error to the attention of the court at the time of the trial. This

is because CPL § 160.57 was not in effect during the time that “People v Griffith, 2001-0883-1”

was pending or during the time that the statute of limitations was pending to pursue a motion,

pursuant to CPL § 460.30, from the judgment of conviction for “People v Griffith,

2001-0883-1”. Further, it can be considered that the current proceeding is not a substitute for a

new trial, appeal or other statutory remedy. This is because the coram nobis proceeding seeks

only the right to pursue an appeal—it is not a substitute for a new trial, appeal or other statutory

remedy, and as to the latter, the only statutory recourse appears in CPL 460.30—and that remedy

is unavailable because the one-year time limit has expired. (People v Syville, id. at 400)

As I demonstrated, People v. Thomas, 47 N.Y.2d 37, 42 (N.Y. 1979) demonstrates: “We there

held that, upon a showing that a defendant had not been informed of his right to appeal and had

a genuine appealable issue, he was entitled to ‘be resentenced so that his time to appeal will run

anew ’ (People v Montgomery, supra, p 134; see, also, People v Rivera, 39 N. Y.2d 519, 525). ”

(see page 17 of “Exhibit C”) “People v Rivera, id. at 521-522 (1976)” demonstrated that coram

nobis was considered and that Rivera’s cause to demonstrate that he had not been apprised of his

right to appeal his 1953 conviction was that he later had a conviction for a second offense in

which being a “second offender” caused him to have a sentence which was exceeding the

sentence that he could have had if he had not been initially convicted. This enabled him to be

resentenced with regard to a Montgomery claim. People v Thomas, id. at 42 demonstrated that

“CPL 460.30 ‘plainly and precisely deals with and encompasses the relief ’ provided in People v

Montgomery’ (24 N.Y.2d 130). ” Since “People v Rivera, id. at 521-522” demonstrated that there

was a “new cause” based on a new consequence that resulted from Rivera's unjust conviction,

pursuant to the criminal procedure law, to consider a Montgomery claim, coram nobis should be

considered, in excess of the statute of limitations as provided in CPL § 460.30, for an extension

3

of time to take an appeal from my judgement of conviction based on the argument that I was not

apprised of my right to appeal and had a genuine appealable issue. This is because I

demonstrated a “new cause” based on a new consequence, pursuant to the criminal procedure

law, which caused my constitutional rights to be violated that resulted from my unjust

conviction.

The People did not respond to my motion taken on the common law of writ of error coram

nobis. On December 9, 2024, the Supreme Court of the State of New York, Appellate Division/

Fourth Department, denied my motion as, in “People v Syville, id. at 399”, the Court of Appeals

notes that “in People v Thomas (47 NY2d 37 [1979]), we have previously identified only one

exception to the general bar on seeking relief after the expiration of the statutory grace period.

We have authorized an appeal despite noncompliance with the CPL 460.30 time limit when,

through action or unjustifiable inaction by a prosecutor, defendant's diligent and goodfaith

efforts to exercise his appellate rights within the one-year time frame were thwarted (id. at 43;

People v Johnson, 69 NY2d 339 [1987]). ” In essence of the Court making this note, it was also

considered with People v Syville, 15 NY3d 391 (2010) that “Today, consistent with the due

process mandate, we recognize the needfor a second exception. Where an attorney has failed to

comply with a timely request for the filing of a notice of appeal and the defendant alleges that the

omission could not reasonably have been discovered within the one-year period, the time limit

imposed in CPL 460.30 should not categorically bar an appellate court from considering that

defendant's application to pursue an untimely appeal” (id. at 399-400) The Appellate Division/

Fourth Department would not consider how I used “People v Syville, 15 NY3d 391 (2010)” to

support that my motion on the common law of writ of error coram nobis could be used to extend

my time to take an appeal, exceeding one year, as my cause for taking my action does not fall

into one of the two “exception[s]” provided in that matter.

In essence of the two “exceptionfs]” that the Court considered in People v Syville, 15 NY3d

391 (2010), upon which it was determined that an extension of time to take an appeal could

exceed one year, the Court should consider a third exception. The third exception that should be

considered is that, if a new law going into effect causes a defendant to suffer a further violation

of his/her constitutional rights based on his/her unconstitutional conviction, an extension of time

to take an appeal should be able to exceed one year if there is no other procedural recourse.

People v Rivera, 39 N.Y.2d 519 (N.Y. 1976) supports the argument that a “new cause” should be

able to be considered to establish a precedent which extends the statute of limitations to be

authorized to raise claims that are authorized to be raised pursuant to CPL § 460.30. That’s

because “People v Rivera, id. at 521-522” demonstrated that a “new cause” was established upon

which a Montgomery claim had been considered. The “new cause” in “People v Rivera, id. at

521-522” was not established until after the statute of limitations was up to take an appeal just as

my “new cause” wasn't established until after my statute of limitations was up.

As the Appellate Division/Fourth Department would not consider how I used “People v

Syville, id. at 400” to support that my motion on the common law of writ of coram nobis could

extend my time to take an appeal, the Appellate Division did not consider whether or not CPL §

4

160.57 going into effect has caused a violation of my constitutional rights. In an appeal from the

Appellate Division’s order, it will also need to be considered by the Court whether or not CPL §

160.57 going into effect may be deemed to have caused a violation of my constitutional rights.

The November 21, 2024 letter from the Principal Appellate Court Attorney of the Appellate

Division/Fourth Department to the Onondaga County District Attorney states that the Motion for

Writ of Error Coram Nobis was taken pursuant “People v Syville, 15 NY2d 391 (2010)”. (see

“Exhibit B”) With the Appellate Division/Fourth Department not providing a reason for denying

my motion, the [ ] letter confirms that the decision was made upon the law alone because it was

decided with regard to the motion [ ] being taken pursuant to “People v Syville, id”. “People v

Syville, id” was decided in this Court. This Court is a “Court of Law”, not a “Court of Facts”.

With the Court ruling in my favor in an appeal, my motion for extension of time to take an

appeal on the common law of writ of error coram nobis can be remitted to the Appellate

Division/Fourth Department for it to be reconsidered whether or not I should be granted an

extension of time to take an appeal.

'

'

I am attaching to this application: the December 9, 2024 Order for People v Griffith, KA

24-01886 (“Exhibit A”), the November 21, 2024 letter to the Onondaga County District Attorney

from the Appellate Division/Fourth Department regarding “People v Griffith, KA 24-01886”

(“Exhibit B”) and my motion for writ of error coram nobis without the attachments. (“Exhibit

C”) Please consider granting me leave to appeal the December 9, 2024 Order of the Supreme

Court of the State of New York, Appellate Division/Fourth Department, for People v Griffith,

KA 24-01886. No other requests to have been granted leave to appeal have previously been

considered in any courts with regard to People v Griffith, KA 24-01886, and no other actions are

currently being taken.

Sincerely yours,

Howard Griffith

cc.: Onondaga County District Attorney

New York State Attorney General

5

Exhibit C:

“People v Griffith, CLA-2025-00015”

OPPOSITION TO APPLICATION FOR LEAVE TO APPEAL

February 11, 2025

DISTRICT ATTORNEY

WILLIAMJ. FITZPATRICK

County of Onondaga

Criminal Courthouse, 4* Floor

505 South State Street

Syracuse, New York 13202

315-435-2470

Fax:315-435-3969

February 11,2025

Hon. Shirley Troutman

Judge of the Court of Appeals

Court of Appeals Hall

20 Eagle Street

Albany, NY 12207-1095

Re:

Pecei\jecJ«

Feb. |3} 2L02S

H * G,

People v Griffith (Howard); CLA-2025-00015

Opposition to Application for Leave to Appeal

Dear Judge Troutman:

I write to oppose defendant’s application for leave to appeal to the Court of Appeals.

Defendant seeks leave to appeal from a December 9, 2024 order of the Appellate Division, Fourth

Department which denied defendant’s motion for a writ of error coram nobis, and which motion

specifically requested relief to file a notice of appeal pertaining to defendant’s 2002 conviction,

upon a guilty plea, for rape in the first degree. This Court should deny defendant’s application for

leave to appeal.

A search by the People of their files and of the decisions of New York courts indicates that

no direct appeal from the underlying judgment of conviction was perfected. Defendant, after being

duly registered pursuant to the Sex Offender Registration Act, appealed his designation, and was

successful in acquiring a new hearing after the Fourth Department reversed upon a finding that he

was deprived of the effective assistance of counsel in connection with the initial proceeding (People

v Griffith, 166 AD3d 1518, 1519 [4th Dept 2018]). Defendant has made extensive pro se efforts

after that to obtain various refief, including through at least three applications to this court, and

several more to the United States Supreme Court. Defendant also filed three motions pursuant to

CPL 440.10 in 2007,2013, and 2022, all of which, to the People’s knowledge, were denied.

Against that backdrop, defendant’s instant application appear misplaced. A writ of error

coram nobis is typically employed as a vehicle to attack the effectiveness of appellate counsel in an

effort to seek, usually, a de novo appeal based upon some issue that was not fully briefed or was

overlooked. A writ of error coram nobis is not a permissible vehicle by which to seek to serve a

two-decade-late notice of appeal. An express statutory provision exists for that in CPL 460.30, and

would address defendant’s very belated claim that he was not advised of his right to appeal. Having

failed to avail himself of that provision in an even remotely timely manner, the Fourth Department

was correct to not countenance an error coram nobis application as an additional avenue for relief.

Given that inappropriate stance in which defendant’s motion stands, this Court should likewise deny

relief.

As further evidence of the lack of merit to defendant’s underlying motion, he raises a claim

that his conviction is unconstitutional because the new “Clean Slate” legislation—enacted in

November 2024 and which permits the automatic sealing of certain convictions after specified time

has passed—does not allow for a blanket sealing of all convictions. Some convictions, such as class

A felonies or, as applicable to defendant, sex offenses, are not eligible for sealing (CPL 160.57 [1]

[b] M)- However, this selective application is permissible and demonstrates commendable

reasoning by the legislature in what was otherwise a remarkable grant of clemency. Nothing about

that stricture is unconstitutional.

Based upon that misunderstanding and a desire to have yet another avenue to mount a

delayed attack on his conviction, defendant asks that this Court expand the power of a writ of error

coram nobis. This would amount to a judicial repeal of CPL 460.30, which is inappropriate.

Although this is conceivably a question of law, it is neither properly before this Court given the

posture of the case, nor is it in any way a compelling issue that requires further guidance.

Defendant’s application should be denied.

Respectfully submitted,

Bradley W. Oastler

Assistant District Attorney

BWO/kc

cc:

Howard Griffith, defendant pro se

2

Exhibit D:

“People v Griffith, KA 24-01886”

ORDER DENYING MOTION FOR WRIT OF ERROR CORAM NOBIS

December 9, 2024

SUPREME COURT OF THE STATE OF NEW YORK

Appellate dtbisfion, Jfourtij Judicial department

KA 24-01886

PRESENT: WHALEN, P.J., SMITH, CURRAN, AND BANNISTER, JJ.

THE PEOPLE OF THE STATE OF NEW YORK; RESPONDENT,

V

HOWARD GRIFFITH, DEFENDANT.

Indictment No: 2001-0883-1

Defendant having moved for a writ of error coram nobis

seeking leave to file and serve a notice of appeal for a judgment

of the Onondaga County Court, rendered January 29, 2002,

Now, upon reading and filing the papers with respect to the

motion, and due deliberation having been had thereon,

It is hereby ORDERED that the motion is denied.

Entered: .December 9, 2024

Ann Dillon Flynn

Clerk of the Court

Exhibit E:

CLEAN SLATE ACT

New York State Assembly

A.1029-C

“Section 1”

CLEAN SLATE ACT

New York State Assembly

A.1029-C

“Section 1”

Almost fifty years ago, New York enacted anti-discrimination protections for individuals

with a prior criminal conviction. In his approval message, Governor Carey noted that the expense

and time involved in prosecuting and incarcerating an individual is largely wasted “if upon the

individual's return to society his willingness to assume a law abiding and productive role is

frustrated by senseless discrimination” and further noted that providing a formerly incarcerated

individual “a fair opportunity for a job is a matter of basic human fairness as well as one of the

surest ways to reduce crime.”

He also noted that the legislation in no way required the hiring of someone with a criminal

record but provided reasonable standards to be applied when considering the'employment of

such an individual, and that merely having a criminal record could not be the sole basis for

denying employment. While New York has made great strides in fighting discrimination - on the

basis of many attributes, experiences, and circumstances of New Yorkers - discrimination on the

basis of past convictions still persists.

Therefore, it is the intent of the legislature to further curb this discrimination by sealing from

public access the conviction records of individuals for certain state convictions only after an

individual has satisfied their sentence and the required period of time has passed, within which

the individual has remained a law abiding citizen while ensuring that this otherwise sealed

conviction information will remain accessible for law enforcement and other relevant and

necessary purposes. These relevant and necessary purposes include but are not limited to

determining suitability for licensing, employment and similar activities where federal or state

law requires a criminal background check be performed prior to granting licenses to or

employing individuals in certain jobs, such as employment with children, elderly populations, or

other vulnerable populations, as well as where federal or state law authorizes a criminal

background check to be performed prior to the same type of employment or similar activity.

It is further the intent of the legislature that this legislation shall not have any impact on, nor

will it change the access to, information regarding out of state or federal conviction information

for law enforcement purposes or any other person or entity, including prospective employers,

accessing an individual's criminal history through criminal background checks or through

publicly accessible records.

Exhibit F:

CLEAN SLATE LAWS:

Utah, Connecticut, California, New York

UTAH

Eligibility for Clean Slate Expungement

Per Utah Code 77-40a-101:

“Title 77 ‘Utah Code of Criminal Procedure’ - Chapter 40a ‘Expungement’ - Part 1 ‘General

Provisions’ Per Utah Code 77-40a-101 ‘Definitions’, U.C.A. 77-40a-101(4)(c)(iii)(D): ‘(4)(c):

“Clean slate eligible case” does not include a case: (iii) that resulted in one or more pleas held in

abeyance or convictions for the following offenses: (D) sexual battery in violation of Section

76-9-702.1’”

see subsection (4)(c)(iii)(D) Per Utah Code 77-40a-101

U.C.A. 77-40a-101 (4)(c)(iii)(D)

Registerable sex offenses U.C.A. 77-41-102

Effective: February 10, 2022

CONNECTICUT

2022 Connecticut General Statutes

Title 54 - Criminal Procedure

Chapter 961a - Criminal Records

Section 54-142a. (Formerly Sec. 54-90). - Erasure of criminal records

CHAPTER 961a*

CRIMINAL RECORDS

*Cited. 211 C. 151; 227 C. 641

PARTI

ERASURE

Connecticut General Statutes Sec. 54-142a. (Formerly Sec. 54-90). 1 Erasure of criminal records

(e) (1) Except as provided in subdivision (2) and subdivision (3) of this subsection, whenever

any person has been convicted in any court of this state of a classified or unclassified

misdemeanor offense, or a class D or E felony or an unclassified felony offense carrying a term

1 Title 54 of Chapter 961a

of imprisonment of not more than five years, any police or court record and record of the state's

or prosecuting attorney or the prosecuting grand juror pertaining to such conviction, or any

record pertaining to court obligations arising from such conviction held by the Board of Pardons

and Paroles shall be erased as follows: (A) For any classified or unclassified misdemeanor

offense, such records shall be erased seven years from the date on which the court entered the

convicted person's most recent judgment of conviction (i) by operation of law, if such offense

occurred on or after January 1, 2000, or (ii) upon the filing of a petition on a form prescribed by

the Office of the Chief Court Administrator, if such offense occurred prior to January 1, 2000;

and (B) for any class D or E felony or an unclassified felony offense carrying a term of

imprisonment of not more than five years, such records shall be erased ten years from the date on

which the court entered the convicted person's most recent judgment of conviction (i) by

operation of law, if such offense occurred on or after January 1, 2000, or (ii) upon the filing of a

petition on a form prescribed by the Office of the Chief Court Administrator, if such offense

occurred prior to January 1, 2000.

(2) Convictions for the following offenses shall not be eligible for erasure pursuant to this

subsection:

(A) Any conviction designated as a family violence crime, as defined in section 46b-38a;

(B) Any conviction for an offense that is a nonviolent sexual offense or a sexually violent

offense, each as defined in section 54-250

see Subsections (e)(1) and (e)(2)(B) of Sec. 54-142a of the Connecticut General Statutes

(formerly Sec. 54-90) with regard to “Criminal Records ‘Erasure’ ” (Chapter 961a, Part I)

2022 Connecticut General Statutes - Title 54 “Criminal Procedure” - Chapter 961a “Criminal

Records” - Section 54-142a (Formerly Sec 54-90) “Erasure of Criminal Records” Connecticut

General Statutes Sec. 54-142a(e)(l) and 54-142a(e)(2)(B)

Effective January 1, 2023

CALIFORNIA

In September 2022, California became the eighth state to enact a Clean Slate law when Governor

Gavin Newsome signed Senate Bill 731 (SB 731):

California Penal Code § 1203.425. (a) (1) (A) Commencing July 1, 2023, and subject to an

appropriation in the annual Budget Act, on a monthly basis, the Department of Justice shall

review the records in the statewide criminal justice databases, and based on information in the

state summary criminal history repository and the Supervised Release File, shall identify persons

with convictions that meet the criteria set forth in subparagraph (B) and are eligible for automatic

conviction record relief.

(B) A person is eligible for automatic conviction relief pursuant to this section if they meet all of

the following conditions:

(i) The person is not required to register pursuant to the Sex Offender Registration Act.

see California Penal Code §§ 1203.425(a)(1)(A) and 1203.425(a)(l)(B)(i)

NEW YORK

Criminal Procedure Law § 160.57(l)(b)(v) “Automatic Sealing of Convictions”: "(1)

Convictions for certain traffic infractions or a crime defined in the laws of this state shall be

sealed in accordance with this section as follows: (b) criminal convictions shall be sealed upon

satisfaction of the following conditions: (v) the conviction is not for an offense defined as a sex

offense or sexually violent offense under section one hundred sixty-eight-a of the Correction

Law.”

Effective: November 16, 2024

Exhibit G:

“People v. Moss, 2025 NY Slip Op 01673: Effect of Prior Unchallenged

Conviction on Sex Offender Registration Act (SORA) Risk Level”

Published by New York Law Review

in New York Court of Appeals

New York Law Review

People v. Moss, 2025 NY Slip Op 01673: Effect of Prior Unchallenged Conviction on Sex

Offender Registration Act (SORA) Risk Level

Published by

The New York Law Review

in

New York Court of Appeals

People v. Moss, 2025 NY Slip Op 01673 (2025)

The Sex Offender Registration Act (SORA) guidelines’ override for a prior felony sex crime

conviction applies if the conviction has not been vacated or overturned, even if a subsequent

court finds the conviction constitutionally infirm for sentencing purposes.

Summary

The New York Court of Appeals affirmed the application of a SORA risk level override,

mandating a presumptive risk level three classification for Dwight Moss because he had a prior

felony conviction for a sex crime. Although a later court determined that Moss’s 2006 guilty plea

was likely coerced and could not be used as a sentencing predicate in a subsequent case, the

Court of Appeals held that the prior conviction remained valid for SORA purposes because it

had not been directly vacated or overturned. The court emphasized that the SORA guidelines

should be applied when a prior felony sex crime conviction exists on a defendant’s record and

has not been successfully challenged through the proper legal channels.

1

Facts

Dwight Moss had a history of sex crime convictions, including a 2006 felony conviction for

course of sexual conduct against a child. In 2016, he was convicted of additional sex crimes.

During sentencing for the 2016 conviction, Moss argued that the 2006 conviction was

unconstitutionally obtained due to coercion. The sentencing court agreed and determined the

2006 conviction could not be used as a predicate offense for sentencing in that case. However,

the 2006 conviction was never vacated. Following Moss’s release from prison, the Board of

Examiners of Sex Offenders (Board) prepared a risk assessment, applying the SORA guidelines.

The Board applied the override for prior felony sex crime convictions, resulting in a presumptive

risk level three classification. Moss contested this determination, arguing that the 2006

conviction should not trigger the override due to the finding of coercion in his later sentencing.

The SORA court upheld the override because the conviction had not been vacated or overturned.

Procedural History

Moss was convicted of multiple sex offenses spanning several years, including a 2006 conviction

for a felony sex crime. In 2016, he was convicted of additional sex crimes, and during

sentencing, argued that the 2006 conviction was unconstitutionally obtained. The sentencing

court agreed and determined the 2006 conviction could not be used as a predicate offense for

sentencing in that case. A SORA hearing followed, with the Board applying the SORA

guidelines and the override for prior felony sex crime convictions, resulting in a presumptive risk

level three classification. The SORA court upheld the override, and the Appellate Division

affirmed. The Court of Appeals granted leave to appeal.

Issue(s)

1. Whether the SORA guidelines’ override for a prior felony sex crime conviction applies where

a subsequent court determines the conviction was likely coerced and cannot be used as a

sentencing predicate, but the conviction itself has not been vacated or overturned?

2

Holding

1. Yes, because the SORA guidelines’ override for a prior felony sex crime conviction applies

when the conviction remains on the defendant’s record, even if a court later determines it was

unconstitutionally obtained for the purposes of sentencing, as long as it has not been vacated or

overturned.

Court’s Reasoning

The Court of Appeals focused on the purpose of SORA: to protect the public from sex offenders.

The court deferred to the Board’s interpretation of the guidelines, recognizing its expertise. The

court distinguished between a conviction being deemed unconstitutional in a sentencing context

and a conviction being directly challenged and vacated or overturned. The court reasoned that

while a subsequent court found the 2006 guilty plea constitutionally infirm and thus unusable for

sentencing, Moss had never taken steps to directly challenge the 2006 conviction, therefore it

remained on his record. The court emphasized the higher evidentiary burden Moss would have

faced had he directly challenged the constitutionality of the 2006 conviction. Since Moss failed

to pursue the proper procedural avenues to vacate the conviction, the court found no basis to

depart from the guideline’s clear language mandating the override.

Practical Implications

This case highlights the critical importance of challenging a prior conviction directly and using

the proper legal channels. Legal practitioners should advise clients to challenge all prior

convictions directly, rather than collaterally, if such challenges are available and could affect a

future SORA determination. When representing a client in a SORA proceeding, counsel must

carefully examine the client’s prior convictions and determine whether any challenges have been

made. Even if a conviction has been deemed constitutionally infirm in a subsequent case, it may

still trigger SORA consequences if it has not been vacated. This ruling also underscores the need

for a defendant seeking to avoid the SORA override to meet the higher evidentiary burden

required to vacate or overturn a conviction. The decision also underscores the importance of the

Board of Examiners of Sex Offenders’ interpretation of the guidelines and their expertise in

applying them.

3

Exhibit H:

People v Moss, No. 28

New York State Court of Appeals

March 20, 2025

OPINION

(uncorrected)

ibtate of JBehj gorfc

(Court of Appeals

OPINION

This opinion is uncorrected and subject to revision

before publication in the New York Reports.

No. 28

The People &c.,

Respondent,

v.

Dwight Moss,

Appellant.

David R. Juergens, for appellant.

Martin P. McCarthy, II, for respondent.

%

SINGAS, J.:

The Sex Offender Registration Act (SORA) Guidelines call for an automatic

“override” to a presumptive risk level three classification if “[t]he offender has a prior

felony conviction for a sex crime” (Sex Offender Registration Act: Risk Assessment

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Guidelines and Commentary [Guidelines], override 1 [2006]). Here, the SORA court

applied this override in light of defendant’s undisturbed prior felony sex crime conviction.

We agree that the override applies and therefore affirm.

I.

Defendant has been convicted of a series of sex crimes, including the offense that

triggered the override at issue here. In 1995, defendant pleaded guilty to sexual misconduct

for raping a 13-year-old child when he was 25 years old. In 2006, defendant pleaded guilty

to course of sexual conduct against a child in the second degree for sexually abusing a child

on more than 10 occasions starting in 2004, when the victim was 10 years old, and ending

in January 2006. During that time, defendant impregnated the victim and then arranged for

an abortion. In 2007, defendant pleaded guilty to forcible touching for fondling a 15-year-

old girl’s genitals while masturbating. And in 2016, defendant was convicted of sexual

abuse in the first degree and endangering the welfare of a child stemming from incidents

when, while babysitting his seven-year-old relative, he touched her genitals and

masturbated in her presence.

In the 2016 criminal action, defendant was originally sentenced as a second child

sexual assault felony offender (see CPL 400.19), with his 2006 felony conviction serving

as the predicate for the enhanced sentence. On appeal, defendant argued that the 2006

conviction was constitutionally infirm and thus could not serve as a predicate for purposes

of sentencing (see id. § 400.19 [6] [c]). The prior conviction’s constitutionality was not

reviewed on direct appeal in the 2006 action, because defendant did not timely file a notice

of appeal and the Appellate Division then denied defendant’s pro se motion to take a late

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appeal under CPL 460.30 (see People v Moss, 2008 NY Slip Op 64992[U] [4th Dept

2008]). To date, defendant has not filed any other motion challenging the 2006 conviction.

However, the Appellate Division vacated defendant’s sentence in the 2016 action and

remitted for a hearing to determine whether his 2006 guilty plea was unconstitutionally

obtained, based on defendant’s statement at sentencing that the court in the 2006 action

“coerced him into pleading guilty to a reduced charge by threatening to impose the

maximum sentence if he were convicted at trial” (People v Moss, 200 AD3d 1662, 1664

[4th Dept 2021]).

At the ensuing hearing, the resentencing court stressed that it was empowered to

assess the constitutionality of defendant’s 2006 guilty plea “only for the purpose of using

it to establish [defendant] as a second child sexual assault felony offender” in the 2016

criminal case, and that the court lacked authority to vacate the 2006 plea. The court

ultimately determined that the 2006 conviction could not be used as a sentencing predicate

because defendant had put forth substantial evidence that his 2006 guilty plea was

unconstitutionally coerced (see People v Harris, 61 NY2d 9, 15-16 [1983]).1 The court

therefore resentenced defendant as a first felony offender.

In anticipation of defendant’s release from prison, the Board of Examiners of Sex

Offenders (Board) prepared a risk assessment instrument assessing him 65 points, which

1 Defendant argued that his 2006 guilty plea was unconstitutionally coerced based on both

the trial court’s threat to impose a 50-year sentence if he were convicted at trial, and the

trial court’s denial of his request for more time to discuss the People’s plea offer with his

family.

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would result in a presumptive risk level one classification (see Correction Law § 168-1 [6];

Guidelines at 3). The Board also determined that under the Guidelines, “the fact that

[defendant] has a prior felony sex crime conviction automatically results in a presumptive

risk [l]evel [three]” classification, pursuant to the override that applies if the offender “has

a prior felony conviction for a sex crime” (Guidelines, override 1). The Board did not

recommend departing from this presumptive classification, reasoning that defendant’s

2016 offense “represents his fourth sex crime conviction and despite prior detection and

sanctioning, his sexually offending behavior has persisted.”

Before the SORA court, defendant argued that the 2006 conviction does not trigger

the override, asserting that his 2006 guilty plea had been deemed unconstitutional at his

resentencing in the 2016 criminal case. Defendant did not alternatively request a downward

departure from his presumptive risk level three classification in the event the SORA court

applied the override. The People countered that the resentencing court had not overturned

defendant’s 2006 conviction, and that the override must be applied because the conviction

remains on defendant’s criminal record. In the alternative, the People requested an

opportunity to seek an upward departure.

The SORA court applied the override and designated defendant a level three

sexually violent predicate sex offender. It held that the override applies automatically

because defendant’s 2006 felony sex offense conviction was neither “vacate[d]” nor

“overtum[ed].” The court declined to depart from defendant’s resulting presumptive risk

level three classification, noting that defendant had not sought a downward departure.

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The Appellate Division affirmed “for reasons stated in the [SORA court’s] decision”

(222 AD3d 1451 [4th Dept 2023]). We granted defendant leave to appeal (see 41 NY3d

999 [2024]) and now affirm.

II.

SORA’s underlying purpose is “to protect the public from sex offenders” (People v

Mingo, 12 NY3d 563, 574 [2009]; see also e.g. People v Windham, 10 NY3d 801, 802

[2008] [SORA imposes “a collateral consequence of a conviction for a sex offense

designed not to punish, but rather to protect the public”]). To that end, SORA directs the

Board to “develop guidelines ... to assess the risk of a repeat [sexual] offense . .. and the

threat posed to the public safety” (Correction Law § 168-1 [5]), and requires that the

Guidelines “be based upon” non-exhaustive factors including “the number, date and nature

of [the offender’s] prior offenses” (id. § 168-1 [5] [b] [iii]). The Guidelines’ function is to

advance SORA’s goal of generating “an accurate determination of the risk a sex offender

poses to the public” (Mingo, 12 NY3d at 574). We afford “careful consideration to the

Board’s interpretation of th[e] Guidelines,” recognizing the Board’s legislative mandate to

promulgate them and the Board’s subject matter expertise (People v Cook, 29 NY3d 121,

129 [2017]).

A defendant can utilize several legal avenues to contest a conviction. They can

directly challenge the conviction by moving to vacate it under CPL 440.10, including, as

relevant here, by arguing that the conviction was obtained “by duress, misrepresentation or

fraud on the part of the court” (CPL 440.10 [1] [b]) or in violation of their constitutional

rights (see id. § 440.10 [1] [h]). They can also argue on direct appeal that the conviction is

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unconstitutional or otherwise infirm (see id. § 450.10 [1]). These are the remedies that the

legislature has provided for a defendant wishing to unwind a criminal conviction. However,

after the Appellate Division denied defendant’s motion to file a late notice of appeal,

defendant did not move to vacate his conviction under CPL 440.10, including on grounds

of ineffective assistance of counsel (see id. § 440.10 [1] [h]), and we cannot speculate as

to the outcome of such a motion had he chosen to file one. Nor did defendant request a

downward departure at the SORA hearing based on the conviction’s asserted

unconstitutionality—a discretionary remedy available under SORA if the offender

adequately demonstrates “mitigating circumstances” that are “not adequately taken into

account by the [Guidelines” (People v Gillotti, 23 NY3d 841, 861 [2014]). Indeed, this

case’s unusual facts would seem to present the type of circumstance that a SORA court

could properly consider in deciding whether to depart from an offender’s presumptive

classification. Defendant instead has chosen to challenge his 2006 conviction in the instant

civil context, thus retaining the terms and benefits of his plea deal in the 2006 action, while

at the same time claiming that his 2006 guilty plea was unconstitutional for SORA and

resentencing purposes only.

Defendant’s reliance on the resentencing court’s collateral determination that his

2006 conviction cannot be used as a predicate to impose an enhanced sentence is

misplaced. As the resentencing court explained, it lacked authority to vacate the 2006

conviction and instead properly stressed that its determination governed only the 'question

of whether the People could use the conviction to establish defendant’s status as a second

child sexual assault felony offender for purposes of sentencing. Furthermore, at the

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resentencing hearing, defendant bore the burden of offering substantial evidence that the

2006 conviction is constitutionally infirm (see Harris, 61 NY2d at 15-16). If defendant

directly challenged the conviction’s constitutionality, however, he would face a higher

burden of proof (see People v Sosa, 28 NY3d 965, 966 [2016] [appellate courts assess

under “the totality of the circumstances” a defendant’s claim that their plea was

involuntary]; CPL 440.30 [6] [a defendant moving to vacate their conviction “has the

burden of proving by a preponderance of the evidence every fact essential to support the

motion”]). No court has determined that defendant’s 2006 conviction is unconstitutional or

otherwise invalid under that more demanding standard. Nor have the People had an

opportunity to be heard in opposition to defendant’s attempt to make such a showing.

Against this backdrop, it is logical for the Guidelines to require an offender with a prior

felony sex offense conviction to satisfy the higher evidentiary burden that they must meet

to vacate or reverse that conviction, if they wish to avoid the override’s application.

Given that defendant failed to pursue any procedural pathway to vacate the 2006

conviction, we see no reason to depart from the Guidelines’ text stating that the override is

triggered if “[t]he offender has a prior felony conviction for a sex crime” (Guidelines,

override 1). We therefore apply the Guidelines and hold that the override was properly

implemented (see Cook, 29 NY3d at 128-129; Johnson, 11 NY3d at 420-421).

Defendant’s other contentions lack merit or are unpreserved for our review.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

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Order affirmed, without costs. Opinion by Judge Singas. Chief Judge Wilson and Judges

Rivera, Garcia, Cannataro, Halligan and Webber concur. Judge Troutman took no part.

Decided March 20, 2025

-8-

THE PEOPLE V HOWARD GRIFFITH

Motion No: KA 24-01886

Slip Opinion No: 2024 NY Slip Op 81314(U)

Decided on December 9, 2024

Appellate Division, Fourth Department, Motion Decision

Published by New York State Law Reporting Bureau pursuant to Judiciary Law §431.

This motion is uncorrected and is not subject to publication in the Official Reports.

December 9, 2024

PRESENT: WHALEN, P.J., SMITH, CURRAN, AND BANNISTER, JJ.

KA 24-01886

Indictment No: 2001-0883-1

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V

HOWARD GRIFFITH, DEFENDANT.

Defendant having moved for a writ of error coram nobis seeking leave to file and serve a notice of appeal for a

judgment of the Onondaga County Court, rendered January 29, 2002,

Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had

thereon,

It is hereby ORDERED that the motion is denied.

Entered: December 9, 2024

Ann Dillon Flynn

Clerk of the Court