Automatic SORA Level 3 Override for Undisturbed Prior Felony Sex Convictions

Introduction

In People v. Moss (2025 NYSlipOp 01673), the New York Court of Appeals addressed whether the Sex Offender Registration Act (SORA) requires an automatic override to a presumptive risk level 3 classification when an offender has an undisturbed prior felony sex crime conviction. The appellant, Dwight Moss, had multiple prior convictions for sexual offenses against minors, including a 2006 guilty plea for “course of sexual conduct against a child in the second degree.” At his 2016 sentencing, that 2006 conviction served as the predicate for an enhanced sentence as a second child sexual assault felony offender. On appeal from a resentencing hearing that deemed the 2006 plea constitutionally infirm for sentencing purposes only, Moss challenged the SORA override on the ground that the conviction had been “deemed” unconstitutional. The Court of Appeals affirmed application of the override, holding that absent a direct vacatur or reversal of the prior conviction, the Guidelines’ text controls.

Summary of the Judgment

The SORA Guidelines mandate an automatic override to a presumptive risk level 3 if the offender “has a prior felony conviction for a sex crime” (override 1).
Moss’s 2006 conviction was never vacated or overturned; it remains on his record.
The resentencing court in the 2016 case only decided that the conviction could not serve as a predicate for sentencing enhancement, but it did not—and could not—vacate the 2006 plea.
Moss did not pursue a CPL 440.10 motion or request a downward departure at the SORA hearing based on mitigating circumstances.
The Court of Appeals held that the override applies strictly to any undisturbed prior felony sex conviction and affirmed the presumptive level 3 classification.

Analysis

Precedents Cited

People v. Mingo (12 NY3d 563 [2009]) and People v. Windham (10 NY3d 801 [2008]) – established SORA’s remedial purpose of public protection rather than punishment.
People v. Cook (29 NY3d 121 [2017]) – recognized deference to the Board of Examiners’ expertise in interpreting the SORA Guidelines.
People v. Gillotti (23 NY3d 841 [2014]) – explained that a downward departure under SORA requires a showing of mitigating circumstances not adequately accounted for by the Guidelines.
People v. Harris (61 NY2d 9 [1983]) – defined the standard for collateral review of guilty pleas in the sentencing context.
People v. Sosa (28 NY3d 965 [2016]) – addressed appellate review of voluntariness of guilty pleas under a “totality of the circumstances” test.
People v. Johnson (11 NY3d 417 [2008]) – affirmed that overrides must be applied strictly according to the Guidelines’ text.

Legal Reasoning

The Court emphasized that SORA’s statutory purpose is to protect the public by generating accurate risk assessments based on an offender’s criminal history, including “the number, date and nature of prior offenses” (Correction Law § 168-l[5][b][iii]). The Guidelines’ override 1 triggers a presumptive level 3 classification upon a finding of any prior felony sex crime conviction. Moss argued that the resentencing court’s finding of constitutional infirmity in 2006 should negate the override. The Court rejected this, reasoning that:

The resentencing court lacked authority to vacate the 2006 plea; it was limited to determining predicate status for sentencing enhancement under CPL 400.19.
Moss never sought a direct remedy—such as a CPL 440.10 motion to vacate the conviction—or a downward departure at the SORA hearing under Gillotti.
No tribunal has actually vacated or reversed the 2006 conviction under the higher burdens of proof applicable on direct or collateral appeal.
The Guidelines sensibly require the offender to clear the full procedural hurdles for vacatur or reversal if he wishes to avoid the override, rather than allowing a partial, collateral determination to suffice.

Impact

This decision clarifies that:

A court’s collateral finding in an unrelated proceeding (e.g., resentencing) that a prior plea is infirm does not satisfy the requirement to vacate or overturn a conviction under SORA.
Offenders must pursue the full remedies provided by CPL 440.10 or direct appeal, or seek downward departure under SORA, to avoid the automatic override.
The Board of Examiners’ Guidelines receive deference and will be applied strictly according to their text unless the underlying conviction has been fully vacated or reversed.

Future litigants will need to be diligent in challenging prior convictions at the proper time and forum if they hope to escape higher SORA risk levels based on statutory overrides.

Complex Concepts Simplified

SORA Override: A mechanism in the risk assessment guidelines that bumps an offender up to a higher presumptive risk level when certain triggers (like a prior felony sex conviction) occur.
CPL 440.10 Motion: A statutory procedure to vacate a criminal conviction on grounds such as fraud, duress, or constitutional violation.
Downward Departure: A SORA court’s discretion to impose a lower risk level than the Guidelines’ presumptive level if the offender shows mitigating circumstances not captured by the risk instrument.
Sentencing Predicate: A prior conviction used by the People to enhance a defendant’s penalty under statutes like CPL 400.19.

Conclusion

People v. Moss reaffirms that SORA’s risk‐level overrides apply automatically whenever an offender has an undisturbed prior felony sex conviction. Collateral determinations in unrelated proceedings do not suffice to negate an override; only a formal vacatur or reversal under established criminal procedure can remove the trigger. The decision underscores SORA’s protective purpose, the need for clear procedural challenges to prior pleas, and deference to the Board of Examiners’ carefully crafted Guidelines.