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People v. Hernandez, 1999 N.Y. Int. 0070 (May 6, 1999).

CRIMINAL PROCEDURE - APPEAL - CERTIFICATION AS SEX OFFENDER UNDER MEGAN'S LAW


ISSUE & DISPOSITION

Issue

Whether the certification of an individual as a "sex offender" subject to Megan's Law at the time of conviction is appealable.

Disposition

Yes. At least where the certification is unmistakably part of the court's final adjudication with respect to defendant's crimes it is appealable.

SUMMARY

Jose Hernandez was convicted in Nassau County Court of attempted rape and sexual abuse, and classified as a sex offender under Megan's Law for his attack on a Glen Cove woman. The Appellate Division, Second Department, affirmed the judgment.

Hernandez asked the Court of Appeals to reverse the order of the Appellate Division, arguing among other things, that the trial court erroneously instructed the jury that an attempted rape charge required evidence that the defendant took a "substantial step" toward committing rape, as opposed to coming "dangerously close" to committing the crime. He also challenged the constitutionality of applying Megan's Law to his case.

The appeal raised the question of whether the "certification" of an individual as a sex offender is itself appealable. The Court of Appeals held that it is. It, therefore, remitted the case to the Appellate Division for consideration of the defendant's constitutional objection to Megan's Law.