Substantive Due Process and the “Sexually Violent Offender” Label under SORA:
Commentary on People v. Kelsey, 2025 NY Slip Op 06945 (3d Dept)

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I. Introduction

This commentary analyzes the Appellate Division, Third Department’s decision in People v. Kelsey, 2025 NY Slip Op 06945 (Dec. 11, 2025), an important opinion at the intersection of New York’s Sex Offender Registration Act (“SORA”), substantive due process, and procedural safeguards in risk‑level classification proceedings.

The decision addresses three principal themes:

• Whether a person convicted of first-degree sexual abuse of physically helpless minors may constitutionally be designated a “sexually violent offender” under SORA, even where no overt physical force was used;
• What process is required when a SORA order is reversed and remitted for “further proceedings not inconsistent” with an appellate decision; and
• How procedural rules—particularly notice to the Attorney General in constitutional challenges, preservation of arguments, and motions to stay, renew, and reargue—shape the scope of appellate review in SORA cases.

The Third Department holds that:

• The statutory scheme automatically designating the defendant as a “sexually violent offender” based on his convictions for completed and attempted first-degree sexual abuse does not violate substantive due process, even though the conduct did not involve overt physical force;
• County Court did not violate due process by issuing a corrected SORA order on remittal without convening a new hearing; and
• Various procedural objections—challenges to risk-factor scoring, denial of a stay, denial of renewal, and collateral attacks on presentence and certification documents—either lack merit, are unpreserved, or are not properly before the appellate court.

The decision thus extends and applies the New York Court of Appeals’ rational‑basis framework from People v. Knox, 12 NY3d 60 (2009), and People v. Brown, 41 NY3d 279 (2023), to the specific label “sexually violent offender,” reaffirming broad legislative latitude in defining and categorizing sex offenses for registration purposes.

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II. Factual and Procedural Background

A. Underlying Criminal Conduct and Conviction

The defendant, Michael N. Kelsey, was tried and convicted in St. Lawrence County based on conduct during a hiking trip where:

• He subjected an underage victim to sexual contact involving intimate parts while the victim slept; and
• He attempted similar sexual contact with another underage, sleeping victim.

He was convicted of:

• Sexual abuse in the first degree;
• Attempted sexual abuse in the first degree;
• Forcible touching; and
• Two counts of endangering the welfare of a child.

He received an aggregate prison sentence of seven years, followed by 10 years of postrelease supervision. Because his convictions triggered SORA, he became subject to risk‑level classification and a potential special designation under the Act.

B. Initial SORA Proceedings and 2022 Order

Before the defendant’s release from prison, the Board of Examiners of Sex Offenders (“the Board”) prepared a Risk Assessment Instrument (“RAI”) that:

• Recommended classification as a risk level two (moderate risk) sex offender; and
• Mandated designation as a sexually violent offender, based on the enumerated offense of first-degree sexual abuse.

The People agreed with the Board’s recommendation. The defendant, appearing pro se, waived a personal appearance at the SORA hearing but submitted a detailed memorandum objecting to both his risk level and his sexually violent offender designation, including on constitutional grounds.

County Court issued a SORA order in 2022 adopting the Board’s recommendation. The defendant appealed.

C. First Appeal: Reversal and Remittal (People v. Kelsey, 221 AD3d 1399 [3d Dept 2023])

On that first appeal, the Third Department reversed the 2022 SORA order and remitted. It found that County Court:

• Failed to articulate the findings of fact and conclusions of law required by statute in a SORA determination; and
• Left the appellate record “devoid” of any indication that the Attorney General had been provided the mandatory notice of the defendant’s constitutional challenges or that the court had ruled on those issues.

The matter was remitted “for further proceedings not inconsistent with this Court’s decision” (221 AD3d at 1401), primarily to cure those defects in articulation and procedural regularity.

D. Proceedings on Remittal and Second Appeal

On remittal, without holding a new SORA hearing, County Court:

• Issued a new SORA order in February 2024 re‑classifying the defendant as a risk level two sex offender; and
• Again recognized his sexually violent offender designation pursuant to Correction Law § 168‑a(3), (7).

The defendant then moved to:

• Renew and reargue the February 2024 order; and
• Obtain a stay of that order pending resolution of a separate Supreme Court action in which he challenged provisions of the Correction Law.

County Court denied that motion in a June 2024 order. The defendant appealed from:

1. The February 2024 SORA order; and
2. The June 2024 order denying renewal and a stay (and purportedly denying reargument).

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III. Summary of the Opinion

The Third Department’s 2025 decision affirms both the February 2024 and June 2024 orders, concluding:

1. Denial of Stay and Renewal – County Court did not abuse its discretion, or violate due process, by:
   • Denying a stay of SORA classification pending the outcome of the defendant’s separate constitutional challenge in Supreme Court; and
   • Denying renewal, because the defendant offered no new facts that would change the prior determination.
   • The denial of reargument is not appealable and thus is not before the court.
2. Risk Factor Scoring – The assessment of 20 points under risk factor 5 (age of victim) and 20 points under risk factor 6 (other victim characteristics, i.e., physical helplessness) was proper and not an impermissible “double counting.”
3. No New Hearing Required on Remittal – The appellate remittal order did not require a new SORA hearing. County Court acted within its authority and did not violate due process by correcting its findings based on the existing record.
4. Constitutional Challenge to “Sexually Violent Offender” Designation –
   • County Court correctly declined to consider the defendant’s constitutional challenges because the Attorney General had not been properly notified before the February 2024 order was issued.
   • On appeal, after proper notice to the Attorney General (who declined to intervene), the Third Department reached the as‑applied substantive due process challenge to Correction Law § 168‑a(3) and (7).
   • Applying rational‑basis review under Knox and Brown, the court held that labeling the defendant as a “sexually violent offender” is rationally related to legitimate governmental interests and not misleading or unduly stigmatizing as applied to his conduct (sexual abuse of sleeping, underage victims).
5. Other Challenges – The defendant’s challenges to:
   • The contents of his presentence report; and
   • The sex offender certification;
   are not reviewable in this SORA appeal. Additional arguments either lack merit or are unpreserved for appellate review.

Accordingly, the Third Department affirmed both orders in full, with no costs.

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IV. Detailed Analysis

A. Issues on Appeal

The opinion, read against the history of the case, addresses several distinct but interrelated issues:

1. Procedural Discretion – Did County Court abuse its discretion or violate due process by:
   • Refusing to stay SORA classification pending a separate constitutional action; and
   • Denying renewal and reargument of the February 2024 order?
2. Risk Factor Calculations – Did County Court improperly “double count” aggravating factors by assigning points for both the victims’ age and their physical helplessness?
3. Scope of Remittal – After the 2023 reversal and remittal, did due process require a new SORA hearing rather than issuance of a corrected order based on the existing record?
4. Constitutionality of the “Sexually Violent Offender” Designation – Does Correction Law § 168‑a(3) and (7), as applied to a defendant whose sexual offenses involved no overt physical force but targeted physically helpless, sleeping minors, violate substantive due process by imposing a misleading “sexually violent offender” label?
5. Cognizability and Preservation – Which of the defendant’s challenges are properly before the court, and which are barred as:
   • Non‑appealable (e.g., denial of reargument);
   • Not cognizable in a SORA appeal (e.g., attacks on presentence report contents); or
   • Unpreserved because not raised before County Court?

B. Key Precedents and Authorities Cited

1. SORA‑Specific and Procedural Precedents

• People v. Kelsey, 221 AD3d 1399 (3d Dept 2023)
  The prior appeal in this same case. The Third Department reversed the original SORA order due to inadequate articulation of statutory findings and an unclear record on whether the Attorney General had been notified of constitutional challenges. This decision frames the scope of permissible action on remittal.
• People v. Kelsey, 174 AD3d 962 (3d Dept 2019), lv denied 34 NY3d 982, cert denied 593 US ___, 141 S Ct 2607 (2021)
  The conviction appeal, where the court previously summarized the underlying facts and upheld the defendant’s convictions for sexual abuse in the first degree and related offenses. This prior opinion is now cross‑referenced to confirm the nature of the conduct and the fact that the victims were “physically helpless” due to being asleep.
• People v. Miller, 149 AD3d 1279 (3d Dept 2017) and People v. Deming, 155 AD3d 1262 (3d Dept 2017), lv denied 30 NY3d 911 (2018)
  These cases establish that it is not impermissible “double counting” to assess SORA points under both:
  • Risk factor 5 (age of victim), and
  • Risk factor 6 (other victim characteristics such as physical helplessness),
  where the victim’s physical helplessness is not merely a function of age but reflects a distinct vulnerability (e.g., being asleep).
• People v. Powell, 170 AD3d 413 (1st Dept 2019), lv denied 33 NY3d 908 (2019) and People v. Norris, 168 AD3d 1003 (2d Dept 2019), lv denied 33 NY3d 904 (2019)
  Both cases support the proposition that SORA registration and classification generally proceed notwithstanding parallel civil or collateral challenges to the statute; courts have broad discretion to deny stays.
• People v. Liden, 19 NY3d 271 (2012)
  The Court of Appeals emphasized that SORA classification is a legislative mandate and that, in the ordinary course, offenders must be classified prior to release. The Third Department cites Liden as a comparator, confirming that denial of a stay here comports with established doctrine.
• People v. Kiernan, 232 AD3d 916 (2d Dept 2024); People v. Santiago, 237 AD3d 1441 (3d Dept 2025); People v. Furgeson, 230 AD3d 1488 (3d Dept 2024)
  These cases address what happens on remittal in SORA matters. Kiernan supports the idea that remittal for further proceedings does not automatically require a new hearing. Santiago and Furgeson are cited “compare” to illustrate different contexts in which a new hearing was or was not deemed necessary, underscoring that the mandate must be read in light of the specific reasoning of the prior appellate decision.
• People v. LaPierre, 195 AD3d 1301 (3d Dept 2021)
  The court uses LaPierre to highlight that the timing of service of constitutional notice on the Attorney General matters. Where service occurs after the relevant order, the trial court is justified in declining to entertain the constitutional claim at that stage.
• People v. Diaz, 34 NY3d 1179 (2020) and People v. Shufelt, 223 AD3d 966 (3d Dept 2024), lv denied 41 NY3d 909 (2024)
  These cases hold that challenges to presentence reports and related certification documents are not properly raised in a SORA appeal, but rather must be addressed, if at all, in the underlying criminal case or through other appropriate procedural vehicles.
• People v. Henry, 237 AD3d 1258 (3d Dept 2025), lv denied 44 NY3d 982 (2025) and People v. Scott, 230 AD3d 1487 (3d Dept 2024)
  These recent Third Department decisions reaffirm that arguments not raised before County Court in a SORA proceeding—including constitutional arguments about the RAI itself—are unpreserved and cannot be raised for the first time on appeal.

2. Constitutional and Substantive Law Precedents

• People v. Knox, 12 NY3d 60 (2009), cert denied 558 US 1011 (2009)
  In Knox, the Court of Appeals held that classifying a defendant convicted of possessing child pornography as a “sex offender” under SORA does not violate substantive due process, even though his crime did not involve direct contact with a child. Importantly, the Court:
  • Recognized a liberty interest in not being subjected to a materially misleading criminal label, but
  • Held that this interest is not fundamental, triggering rational‑basis review rather than strict or intermediate scrutiny.
  The Third Department anchors its analysis in this framework, treating the challenge to the “sexually violent offender” label as an extension of Knox.
• People v. Brown, 41 NY3d 279 (2023)
  Brown further developed the rational‑basis approach to SORA labeling and classification. The Court of Appeals reaffirmed that:
  • The relevant question is whether the challenged statutory classification is rationally related to a legitimate governmental interest (e.g., public safety, community notification); and
  • The label cannot be so inaccurate as to mislead the public or impose undue stigma disconnected from the actual offense.
  In Kelsey, the Third Department imports Brown’s language and analytic structure, focusing on whether the “sexually violent offender” label rationally reflects the nature of the defendant’s offense.
• Myers v. Schneiderman, 30 NY3d 1 (2017)
  The Court of Appeals in Myers emphasized the deferential nature of rational‑basis review: a statute will be upheld if any reasonable, even hypothetical, legislative purpose can be identified. The Kelsey court cites this principle in emphasizing that courts may “hypothesize the Legislature’s motivation or possible legitimate purpose.”
• People v. Malloy, 228 AD3d 1284 (4th Dept 2024)
  Malloy is another SORA case emphasizing that sex offender registration serves the legitimate goal of protecting the community by providing accurate information about offenders’ risks. It supports the legitimacy of the governmental purpose that underpins SORA classifications.
• 97 Lyman Ave., LLC v. MTGLQ Invs., L.P., 233 AD3d 1038 (2d Dept 2024) and Matter of Avella v. Batt, 33 AD3d 77 (3d Dept 2006)
  These civil cases clarify that, once the Attorney General has been given notice and an opportunity to be heard, an appellate court may proceed to decide a constitutional question even if the Attorney General chooses not to intervene.

3. Statutory Framework

• Correction Law article 6‑C (SORA)
  
  • § 168‑a(1), (2): define “sex offender” and the categories of convictions triggering registration;
  • § 168‑a(3): defines “sexually violent offense,” including a conviction of (or attempt to commit) sexual abuse in the first degree;
  • § 168‑a(7)(b): defines a “sexually violent offender” as a sex offender convicted of a “sexually violent offense” as defined in subdivision (3).
• Penal Law provisions
  
  • § 130.65(2): A person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact when the other person is incapable of consent by reason of being physically helpless;
  • § 130.00(3): Defines “physically helpless” as a person who is unconscious or for any other reason physically unable to communicate unwillingness to an act;
  • § 130.05: Governs lack of consent in sex offenses, including where the victim is incapable of consent due to physical helplessness.
• CPLR 1012(b) and Executive Law § 71
  These provisions mandate that the Attorney General be notified and given an opportunity to intervene whenever the constitutionality of a state statute is challenged in court.
• CPLR 2221
  Governs motions to renew and reargue. A motion to renew must be based on new facts not previously presented that would change the determination. A motion to reargue addresses alleged misapprehensions of fact or law in the prior order, and its denial is generally non‑appealable (see CPLR 5701[a][2][viii]).

C. Court’s Legal Reasoning

1. Denial of Stay and Motion to Renew

The defendant sought a stay of his SORA classification pending resolution of a separate Supreme Court challenge to the Correction Law. The Third Department, relying on Powell and Norris, held that:

• There is no due process right to delay SORA classification while collateral litigation is pending; and
• County Court did not abuse its discretion in denying a stay, particularly in light of SORA’s statutory command that classification occur in proximity to release.

As to renewal, the defendant failed to identify any new facts that would “change the prior determination” (CPLR 2221[e]; Matter of James H. Supplemental Needs Trusts, 172 AD3d 1570, 1574 [3d Dept 2019]). His motion was therefore a reiteration of previous arguments rather than a true renewal motion, justifying denial.

The court also notes that the portion of the June 2024 order denying reargument is not appealable (CPLR 5701[a][2][viii]), and follows its own prior decision in this case (People v. Kelsey, 221 AD3d at 1400 n) in treating such challenges as jurisdictionally barred.

2. Risk Assessment Instrument and “Double Counting” under Risk Factors 5 and 6

The defendant challenged the assessment of:

• 20 points under risk factor 5 (age of victim); and
• 20 points under risk factor 6 (other victim characteristics, specifically physical helplessness).

He argued that counting both was impermissible “double counting” of essentially the same aggravating circumstance.

The Third Department rejected this contention, reiterating its holdings in Miller and Deming:

“As the [victims’] physical helplessness was not the result of, or in any way connected with, [their] age, assessing points in both categories did not constitute impermissible double counting.”

Here, the victims were underage and physically helpless because they were sleeping. Their physical helplessness derived from their state of unconsciousness, not their youth per se. Thus:

• Risk factor 5 captures the vulnerability associated with youth; while
• Risk factor 6 captures a separate dimension of vulnerability: being incapable of communicating unwillingness due to sleep.

Treating these as distinct justifies separate point allocations under each factor. This preserves the integrity of the RAI while respecting the Guidelines’ caution against overlapping factors.

Notably, in footnote 1, the court emphasizes preservation: the defendant did not argue below that:

• The 20 points under risk factor 7 (relationship to the victim) were an abuse of discretion; or
• The RAI criteria themselves are unconstitutional or irrational.

Such arguments, raised for the first time on appeal, are unpreserved and not considered, consistent with Henry and Scott.

3. No Due Process Right to a New SORA Hearing on Remittal

The defendant claimed that due process required County Court to hold a new SORA hearing after the Third Department’s 2023 reversal and remittal. The panel disagreed.

The prior remittal was for the limited purpose of curing deficiencies in the 2022 order:

• Articulating required findings and conclusions; and
• Clarifying the record on constitutional challenges and Attorney General notice.

The Third Department’s mandate authorized “further proceedings not inconsistent with this Court’s decision” (221 AD3d at 1401). In this 2025 decision, the panel explains that this phrase did not implicitly:

• Vacate the underlying factual findings; or
• Require a full new hearing as a matter of due process.

Instead, County Court was permitted to:

• Rely on the existing record from the original SORA hearing; and
• Issue a corrected order with proper findings and reasoning.

Citing People v. Kiernan, the court confirms that such an approach is procedurally sound and does not deprive the defendant of a constitutionally adequate opportunity to be heard. The “compare” citations to Santiago and Furgeson suggest that where the initial appeal reveals factual or evidentiary deficiencies, or where new evidence may be needed, a new hearing might be warranted. That was not the case here, where only the form and completeness of the order were at issue.

4. Substantive Due Process and the “Sexually Violent Offender” Label

(a) Attorney General Notice and Trial‑Level Review

County Court declined to address the defendant’s constitutional challenge to Correction Law § 168‑a(3) and (7) because the Attorney General had not been timely notified. The Third Department affirms this ruling.

Under CPLR 1012(b) and Executive Law § 71, when the constitutionality of a state statute is challenged:

• The Attorney General must be notified; and
• Given an opportunity to intervene and defend the statute.

Although the defendant dated his notice to the Attorney General February 13, 2024 (before the February SORA order), the record—including his own affirmation of service and briefs—showed that actual service occurred on April 1, 2024, after the February order was issued. Accordingly, County Court lacked authority at that stage to adjudicate the constitutional challenge.

On appeal, however:

• The Attorney General was notified of the constitutional question and declined to intervene; and
• The Third Department, relying on 97 Lyman Ave. and Avella, properly proceeded to decide the constitutional issue.

(b) Statutory Definitions and the Defendant’s Argument

Under SORA:

• A “sex offender” includes any person convicted of certain enumerated sex crimes (Correction Law § 168‑a[1], [2]);
• A “sexually violent offense” includes “a conviction of or a conviction for an attempt to commit” sexual abuse in the first degree (Correction Law § 168‑a[3][a][i]; Penal Law § 130.65); and
• A “sexually violent offender” is “a sex offender who has been convicted of a sexually violent offense” (Correction Law § 168‑a[7][b]).

The defendant’s convictions—completed and attempted first-degree sexual abuse of physically helpless victims—fit squarely within this statutory chain. His argument, however, is constitutional and as‑applied:

• He maintains that because his conduct involved no overt physical force, threat, or traditional “violence,” designating him as a “sexually violent offender” is factually incorrect and thus violates his constitutionally protected liberty interest in not being labeled misleadingly.

He relies on Knox, where the Court of Appeals acknowledged a liberty interest against materially inaccurate labeling under SORA.

(c) Standard of Review: Rational Basis

In Knox, the Court of Appeals held:

“The right not to have a misleading label attached to one’s serious crime is not fundamental … and we therefore apply the rational basis test to [defendant’s] claims.” (12 NY3d at 67)

Kelsey adopts this framework. Because the right at issue is non‑fundamental, the classification is constitutional so long as:

• It is rationally related to a legitimate governmental interest (see Brown, 41 NY3d at 285; Myers, 30 NY3d at 15).

Courts may hypothesize reasonable legislative purposes, and the Legislature need not select the best or most precise possible classification; only an arbitrary or utterly irrational classification fails rational‑basis review.

(d) Application: Is “Sexually Violent Offender” Misleading Here?

The court articulates the legitimate governmental interest underlying SORA:

• Protecting the community “against people who have shown themselves capable of committing sex crimes,” and
• Providing “accurate information to the community about the threats posed by sex offenders.” (Knox, 12 NY3d at 67; see also Malloy, 228 AD3d at 1289).

Against that backdrop, the court reasons:

“In our view, the Legislature could have reasonably determined that nonconsensual sexual contact with a person who is physically helpless constitutes sexual violence, and thus chosen to label the perpetrator of that criminal conduct a sexually violent offender.”

Key points:

• “Violence” in this context need not be limited to overt physical force. The Legislature may rationally view the exploitation of a physically helpless person’s inability to resist or communicate as a form of sexual violence, given the profound invasion of bodily autonomy and vulnerability involved.
• The record, proven by clear and convincing evidence, shows that the defendant:
  • Made or attempted sexual contact with two underage victims;
  • While they were asleep; and
  • Therefore incapable of consent by reason of physical helplessness (Penal Law §§ 130.00[3]; 130.05[2][b], [c], [3][d]; 130.65[2]).
• Given those facts, characterizing his conduct as “sexually violent” cannot be said to mislead the public or distort the nature of his crime.

The court explicitly adopts Brown’s focus on whether the label imposes undue stigma disconnected from the offense:

“We therefore cannot say that designating defendant a sexually violent offender would mislead the public, misrepresent the nature of defendant’s crime or result in undue stigma (see People v. Brown, 41 NY3d at 290–291).”

Accordingly, the court concludes that Correction Law § 168‑a(3) and (7) are not unconstitutional as applied to this defendant. It does not decide any broader facial challenge; rather, it focuses on whether this label, as applied to the conduct at issue, passes rational‑basis review.

5. Issues Not Cognizable or Not Preserved

The court also clarifies the limited scope of matters properly reviewable in a SORA appeal:

• Presentence report and certification challenges – These must be raised in the underlying criminal case or through appropriate collateral proceedings (Diaz; Shufelt). They are not part of the SORA classification determination itself.
• Risk factor 7 and RAI constitutionality – Because the defendant did not raise these issues at the SORA hearing stage, they are unpreserved and cannot be considered for the first time on appeal (see fn. 1, citing Henry, Scott).
• Denial of reargument – As a matter of appellate procedure, no appeal lies from an order denying reargument (CPLR 5701[a][2][viii]).

The court notes succinctly that any remaining contentions have been reviewed and found meritless, signaling that none warranted extended discussion or created any new doctrinal wrinkles.

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V. Clarifying Key Legal Concepts

A. SORA Risk Levels vs. “Sexually Violent Offender” Designation

Under SORA, two different classification mechanisms operate:

1. Risk Level (1–3)
   Determined using the RAI and, where appropriate, departures:
   • Level 1 – Low risk;
   • Level 2 – Moderate risk;
   • Level 3 – High risk.
   The level affects the duration of registration and the degree of community notification.
2. Special Designations
   
   • “Sexually violent offender”;
   • “Predicate sex offender”;
   • “Sexual predator.”
   These designations are typically offense‑based and automatic under the statute. A “sexually violent offender” designation, in particular, is triggered by conviction for any “sexually violent offense” enumerated in Correction Law § 168‑a(3).

The defendant’s challenge in Kelsey concerns this automatic offense‑based label, not the risk‑level assessment per se, though he attacks both.

B. “Physically Helpless” as a Legal Concept

Under Penal Law § 130.00(3), a person is “physically helpless” when:

• Unconscious; or
• For any other reason physically unable to communicate unwillingness to an act.

The sleeping victims here were physically helpless because:

• They could not perceive or resist the sexual contact; and
• They were unable to express non‑consent.

This status is distinct from mere youth: an awake child, even if below the age of consent, is not necessarily physically helpless. That distinction is central to the court’s rejection of the “double counting” argument under risk factors 5 and 6.

C. Substantive Due Process & Rational Basis Review

Substantive due process limits the government’s power to enact laws that infringe on fundamental rights or that are so arbitrary as to offend basic notions of justice. When no fundamental right is implicated:

• The law is tested under rational‑basis review: is it rationally related to a legitimate governmental interest?
• The burden on the challenger is very heavy; even imperfect or over‑inclusive laws usually survive if there is any reasonable justification.

In SORA cases:

• The Court of Appeals in Knox held that the interest in avoiding a misleading criminal label is not a fundamental right.
• Thus, SORA classifications are reviewed for rationality: are the labels and registration requirements reasonably related to community protection and public information about sex offenders?

Kelsey applies this framework to the “sexually violent offender” label and concludes that:

• Nonconsensual sexual contact with physically helpless victims can rationally be deemed “sexual violence”; and
• The statute is therefore constitutional as applied to such conduct.

D. Motions to Renew vs. Reargue

Under CPLR 2221:

• Motion to renew – Based on new or additional facts, not previously available, that would change the prior determination. It is essentially a “second chance” grounded in new evidence.
• Motion to reargue – Asks the court to reconsider its decision based on an argument that it misunderstood or misapplied the existing law or facts. It does not introduce new evidence.

The denial of a motion to reargue is generally not appealable. A renewal motion, by contrast, can be appealed, but only if it truly presents new facts. In Kelsey, the defendant failed to supply any new facts that would change the result, so denial of renewal was proper.

E. Preservation of Issues

New York’s preservation doctrine requires that legal arguments:

• Be raised before the trial court (here, County Court) to give that court a fair opportunity to correct errors; and
• Be reflected in the record.

Arguments not advanced at the SORA hearing—such as:

• Challenges to risk factor 7; or
• Global attacks on the rationality of the RAI criteria—

are unpreserved and cannot be raised for the first time on appeal. The court applies this principle strictly even to pro se litigants, as seen in footnote 1, reflecting a commitment to orderly procedure.

F. Notice to the Attorney General in Constitutional Challenges

CPLR 1012(b) and Executive Law § 71 serve an institutional function: they ensure that when a litigant seeks to have a statute declared unconstitutional, the state’s chief legal officer— the Attorney General—has an opportunity to defend the statute.

Key takeaways from Kelsey:

• It is not enough to date a notice before an order; what matters is the date of actual service on the Attorney General.
• If service occurs only after the challenged order is issued, the trial court is justified in declining to reach the constitutional claim at that time.
• On appeal, once notice is given and the Attorney General has had the opportunity to intervene (even if declined), the appellate court may adjudicate the constitutional issue.

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VI. Impact and Broader Significance

A. Substantive Due Process and the Scope of “Sexual Violence”

People v. Kelsey is significant for how it extends and applies the Knox/Brown rational‑basis framework:

• It confirms that the Legislature may constitutionally define “sexual violence” to encompass non‑forceful but nonconsensual sexual contact with physically helpless victims.
• It reinforces that SORA labels—especially offense‑based ones like “sexually violent offender”—will be upheld as long as they bear a reasonable relationship to the offense and to community protection goals.
• It implicitly signals that a successful constitutional challenge to SORA labels will require an extraordinary showing of mismatch between the offense and the label, one not present here.

B. Guidance on Remittal and SORA Procedure

Procedurally, Kelsey clarifies:

• Reversal and remittal of a SORA order for inadequate findings does not automatically entitle a defendant to a new evidentiary hearing.
• County courts may correct and supplement their orders on the existing record, so long as the earlier evidentiary hearing was fair and complete.

This promotes efficiency in SORA proceedings and aligns with SORA’s statutory imperative for timely classification near the offender’s release date.

C. Reinforcement of Preservation and Notice Requirements

The opinion also underscores the importance of:

• Timely and proper notice to the Attorney General for constitutional claims;
• Issue preservation at the SORA hearing stage; and
• The limited scope of issues cognizable in SORA appeals, as opposed to those appropriate to direct criminal appeals or other collateral attacks.

For practitioners, the decision is a reminder that:

• Constitutional challenges must be carefully timed and supported by proof of service on the Attorney General; and
• All objections to risk factors, RAI criteria, and designations must be raised in County Court to preserve them for appellate review.

D. Effects on Future SORA Classification Challenges

Going forward, Kelsey will likely be cited to:

• Reject substantive due process challenges to the “sexually violent offender” designation where the underlying conduct involves:
  • Sexual contact with physically helpless victims (e.g., asleep, unconscious, heavily intoxicated); or
  • Other forms of exploitation of extreme vulnerability, even without overt physical force.
• Uphold the assessment of points for both youth and physical helplessness where these are analytically distinct conditions.
• Support denials of stays pending collateral attacks on SORA or related statutes.

In sum, the decision contributes to a stable and deferential doctrinal environment for SORA classifications, emphasizing legislative prerogative and procedural regularity over expansive due process constraints.

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VII. Conclusion

People v. Kelsey is a significant Third Department decision in New York’s SORA jurisprudence. It:

• Affirms that the automatic “sexually violent offender” designation for first-degree sexual abuse of physically helpless victims is constitutionally sound under substantive due process, even in the absence of overt physical force;
• Clarifies that remittal for further proceedings in SORA cases does not inherently require a new hearing where the deficiency was in the court’s written findings rather than in the evidentiary record;
• Reinforces the procedural rules governing preservation, motions to renew and reargue, and the necessity of Attorney General notice in constitutional challenges; and
• Provides further guidance on SORA risk‑factor scoring, especially regarding age and physical helplessness.

Taken together with Knox and Brown, Kelsey confirms that New York courts will continue to give broad deference to the Legislature’s chosen classifications in the sex offender context, so long as those classifications have a rational basis in community safety and are not grossly misleading in light of the underlying conduct. For litigants and practitioners, the decision underscores that successful constitutional challenges to SORA labels will be rare and must be carefully framed, factually grounded, and procedurally impeccable.