Vacatur of Sex Offender Certification for Non-Registerable Offenses Under SORA

Introduction

This commentary examines the Appellate Division’s decision in People v. Richardson (2025 NYSlipOp 01980), which clarifies the procedure for vacating a sex‐offender registration requirement when the underlying conviction is for a non-registerable offense. In 2012, Jerome Richardson pleaded guilty to third-degree burglary as a “sexually motivated felony,” was sentenced to prison and postrelease supervision, and was required to register under New York’s Sex Offender Registration Act (SORA). Over a decade later, Richardson moved under CPL 440.10 seeking to vacate the SORA certification on constitutional grounds. The Third Department granted relief—not because trial counsel was ineffective, but because the offense did not qualify for registration and the misclassification violated Richardson’s liberty interests.

Summary of the Judgment

The Third Department reversed the trial court’s denial of the CPL 440.10 motion and, in the interest of justice, vacated the provisions of Richardson’s judgment that certified him as a sex offender. Key holdings:

Burglary in the third degree as a sexually motivated felony is not among the registerable offenses under Correction Law § 168-a(2).
Because no clear authority existed in 2012, counsel’s failure to challenge registration did not constitute ineffective assistance.
Nevertheless, misclassification infringes a defendant’s liberty interest; the court may vacate the SORA certification under CPL 440.10(4) without disturbing the plea or entire conviction.
The court exercised its discretionary power to reinstate the judgment of conviction minus the sex-offender registration requirement and fee.

Analysis

Precedents Cited

People v. Buyund (37 NY3d 532 [2021]) and its progeny: Established that SORA certification is part of the judgment and must be challenged on direct appeal.
People v. Winter (215 AD3d 1010 [3d Dept 2023]): Conceded burglary 3rd as a sexually motivated felony is not registerable.
People v. Brown (41 NY3d 279 [2023]): Recognized a protected liberty interest against misclassification and emphasized the registry’s reliability.
People v. Hayward (42 NY3d 753 [2024]): Confirmed counsel is not ineffective for failing to raise novel legal questions without clear authority.

These cases frame the tension between procedural finality and the Legislature’s defined registerable offenses.

Legal Reasoning

The court’s analysis rests on three pillars:

Nature of the Offense. The statute lists specific sex offenses requiring registration. Third-degree burglary—although sexually motivated—is not enumerated, so statutory registration authority is absent.
Ineffectiveness of Counsel. Under People v. McGee and Hayward, counsel cannot be faulted for failing to predict a novel statutory interpretation.
Liberty Interest and Judicial Discretion. Drawing from People v. Brown, the court acknowledged that incorrectly branding someone a sex offender burdens fundamental interests—such as reputation, residency restrictions, and public notification—and undermines public confidence in the registry. The court held that CPL 440.10(4) empowers it to modify part of the judgment to correct this constitutional error without disturbing the valid plea.

Impact on Future Cases

This ruling has three important consequences:

Defendants convicted of non-enumerated “sexually motivated” crimes can seek vacatur of their SORA certification even if the time for direct appeal has lapsed.
Counsel will be alert to statutory lists in advising clients about registration consequences of pleas.
Courts may employ CPL 440.10(4) as a surgical tool to remedy misclassifications—strengthening the registry’s accuracy while preserving plea stability.

Complex Concepts Simplified

SORA Certification vs. Sentence. Registration is not part of a prison or probation term; it is a collateral obligation embedded in the judgment. Vacating it does not mean erasing the conviction.

CPL 440.10(4). A post-conviction relief provision that allows a court, in the interest of justice, to vacate or modify a judgment without an entirely new trial or plea withdrawal.

Liberty Interest. Protecting individuals from unjust restraints on their movement, reputation, and employment when erroneously labeled sex offenders.

Conclusion

People v. Richardson clarifies that a non-enumerated “sexually motivated” burglary does not trigger SORA registration and that misclassification may be corrected post-conviction under CPL 440.10(4) without undermining the plea itself. By separating registration from sentencing, the court preserves finality of convictions while safeguarding individual liberty and the integrity of the sex offender registry. This decision provides a roadmap for similarly situated defendants and affirms the judiciary’s duty to rectify statutory and constitutional errors—even years after plea entry.