Defendant moves to vacate his judgment of conviction for attempted strangulation in the second degree as a sexually motivated felony (Penal Law §§ 110/121.12 and 130.91) pursuant to CPL 440.10(1)(h), contending that his requirement to register under the New York State Sex Offender Registration Act (Correction Law Article 6-C) (herein "SORA") violates a constitutionally protected liberty interest, and, upon vacature, to reinstate his judgment of conviction without the provision certifying him as a sex offender, pursuant to CPL 440.10(4).

The People oppose.

For the reasons set forth herein, defendant's motion is denied.^[FN1]

Although this Court has twice recounted the prior proceedings, they are nevertheless set forth again, and updated or expanded where appropriate, to save the reader the inconvenience of having to cross-references this Court's prior decisions (see infra).

On August 17, 2015, at 3:00AM on a Brooklyn street, a sex worker was forcibly raped, brutally assaulted, and strangled until she lost consciousness. After her attacker fled, the victim screamed for someone to call the police. The victim told responding officers — and later testified in the grand jury — that, prior to the assault, she had agreed to have sex with a man for twenty dollars, but that when she asked for the money in advance, the man grabbed her in a choke hold and rammed his fingers down her throat until she lost consciousness. When she came to, the man forced her to kneel, then raped and groped her. At one point when she screamed, the man again rammed his fingers down there throat, knocking out two of her teeth. The victim cried and screamed whenever she could, and begged the man to let her go, all to no avail. After the assault, the man told the victim that he would kill her if she screamed again. The police recovered a condom and condom wrapper from the crime scene. The victim was transported to a local hospital for treatment, and while she was there a sexual assault evidence collection test kit was collected from her.

On August 27, 2015, defendant told police that he had agreed to pay the victim for sexual intercourse, knowing that he did not have enough money to pay her, and that when he was unable to pay her afterwards, she started screaming that he had raped her, so he got upset and punched her in the face and choked her, causing her to bleed profusely.

On September 17, 2015, the above-captioned indictment was filed in Kings County Supreme Court, Criminal Term, charging defendant with Rape in the First Degree, Sexual Abuse in the First and Third Degrees, Sexual Misconduct, Assault in the Second Degree as a Sexually Motivated Felony, Assault in the Second and Third Degrees, two counts of Criminal Obstruction of Breathing or Blood Circulation, Strangulation in the Second Degree, and Strangulation in the Second Degree as a Sexually Motived Felony (Penal Law §§ 130.35[1], 130.65[1], 130.55, 130.20[1], 120.05[6]/130.91[1], 120.05[6], 120.00[1], 121.11[a] and [b], 121.12, and 121.12/130.91[1], respectively).

On December 8, 2016, the parties advised the Court (Shillingford, J.) that a plea agreement had been reached. Specifically, the prosecutor advised the Court:

The new offer is Attempted Strangulation in the Third Degree as a Sexually Motivated Felony, three-and-a-half years incarceration, five years post-release supervision, waiver [of] appeal, and sex offender registration.

After clarifying the penal law sections to which defendant would be pleading guilty, defendant's attorney advised the Court:

Yes, that's what my client authorizes me to enter a plea [to] on his behalf, pleading guilty with the understanding as outlined by the People of three-and-a-half years incarceration, five years post-release supervision, and the SORA registration."

Finally, prior to allocuting defendant, the Court also iterated its understanding of defendant's negotiated plea disposition:

The promise is three-and-a-half years jail with five years post-release supervision, you have to register pursuant to the Sex Offender Registration Act, you are — there are fines, there is a sex offender victim fee — supplemental sex offender victim fee of [one thousand dollars], sex offender registration fee of [fifty dollars], DNA fee of [fifty dollars], and mandatory surcharge crime victim fee of [twenty-five dollars].

The Court then allocuted defendant and accepted his plea of guilty to Attempted Strangulation in the Second Degree as Sexually Motivated Felony (Penal Law §§ 110/121.12 and 130.91[1]). Id., pp. 4-12. In his allocution, defendant admitted under oath that on August 17, 2015, in Kings County, New York, he choked the victim until she lost consciousness, and that his purpose in doing so was, in substantial part, for his own sexual gratification, in that she was subject to sexual intercourse or sexual contact by forcible means. Id., pp. 5-7.

On December 22, 2016, defendant appeared before the Court (Shillingford, J.) for sentencing. Before imposing the agreed-upon, bargained-for disposition, the Court certified that defendant was a sex offender subject to SORA, advising him:

Sir, in accordance with the plea to Attempted Strangulation in the Second Degree as a Sexually Motivated Felony, you are sentenced to the promise[d sentence] of three-and-a-half years jail with five years post-release supervision. You are going to be required to register as a sex offender pursuant to the Sex Offender Registration Act. There is a mandatory court surcharge of [two hundred fifty dollars], a DNA fee of [fifty dollars], a sex offender fee of [fifty dollars], and a supplemental sex offender victims fee of [one thousand dollars] for a total of [one thousand three hundred fifty dollars].

You are advised pursuant to Article 6-c of the Correction Law that you are required to comply with [SORA], and it is your duty to register with the Division of Criminal Justice Agency. If you fail to comply with your duties, you will be guilty of a class A misdemeanor, and any subsequent failures to comply shall be a class D felony.

Defendant did not challenge his certification as a sex offender subject to SORA, and made no objection to any of the sentencing court's admonitions.^[FN2]

Defendant did not file a direct appeal, and was scheduled to be released from custody on or about January 12, 2020, at which time his five-year term of postrelease supervision would commence.

In a report dated October 11, 2019 — in anticipation of defendant's SORA hearing that was scheduled for December 5, 2019, before Justice Shillingford — the New York State Board of Examiners of Sex Offenders (herein "the Board") prepared a Risk Assessment Instrument (herein "RAI") and a case summary to assist the Court in its determination of whether defendant would be classified as a sex offender, and if so what his risk level and any appropriate designation should be, in advance of his release from custody. In the Board's RAI, defendant was assessed: fifteen points under factor one for inflicting injury; twenty-five points under factor two for sexual intercourse or aggravated sexual abuse; twenty points under factor seven because defendant and the victim were strangers; thirty points under factor nine because defendant had a prior violent felony conviction; fifteen points under factor eleven because defendant had a history of substance abuse; and fifteen points under factor twelve for being expelled from, and refusing to participate in, sex offender treatment programs while incarcerated for this offense. The one hundred twenty point tally on the RAI rendered defendant a presumptive Level Three sex offender. The Board did not assess any overrides nor recommend any departure, and sought no designation.

However, on November 13, 2019, the Appellate Division, Second Department (herein "the Second Department"), issued its decision in People v Buyund, 179 AD3d 161 (2d Dept 2019) (herein "Buyund 1"). In that case, as relevant here, the Second Department held, on direct appeal, that Buyund had been erroneously certified as sex offender subject to SORA because his crime of conviction — Burglary in the First Degree as a Sexually Motivated Felony (Penal Law §§ 140.30 and 130.91, respectively) — was not included in the clear and unambiguous statutory text of Corrections Law § 168-a(2), which lists the convictions for which SORA registration is mandated, even though Buyund's SORA certification and registration had been an expressly negotiated component of defendant's guilty plea with the court, and even though the claim defendant raised on appeal had not been preserved below. The Second Department thus relieved defendant Buyund of his SORA obligations and attendant SORA fees. Critically, in reaching the merits of the unpreserved claim, the Second Department reasoned, "Contrary to the People's contention, the defendant's argument is not subject to the preservation rule [because a] challenge to an unlawful sentence falls outside the preservation rule." Buyund 1 at 170 (internal citations omitted).

On November 19, 2019, defendant filed a CPL 440.20 motion to set aside that "portion of his sentence" where he was certified as sex offender subject to SORA registration, along with the attendant SORA fees, citing Buyund 1.

The People opposed, contending that CPL 440.20 was not the appropriate vehicle for relief, insofar as the original sentencing court's certification of defendant as a sex offender subject to SORA registration was not part of defendant's sentence. Additionally, the People contended that defendant's motion was procedurally barred because he had unjustifiably failed to appeal from his judgment of conviction.

On December 10, 2019, Justice Shillingford granted defendant's motion. While acknowledging that the instant case was on different procedural footing than Buyund 1, and that extant authority from the Second Department had found previously that CPL 440.20 was not the proper mechanism for a defendant to challenge his certification as a sex offender requiring SORA registration, Justice Shillingford nevertheless granted defendant's motion, and agreed to resentence him, such that he was not deemed a sex offender, and that any part of his sentencing related to SORA was vacated, and otherwise imposed the same terms of incarceration and post release supervision as before. Justice Shillingford noted that, when the disposition in this case was reached, all of the parties understood that defendant's SORA registration was a critical component of the negotiated plea, but concluded that the issue of how to provide a remedy that was fair and equitable to all of the parties who had entered into this plea agreement was not before her.

The People appealed Justice Shillingford's decision and order.

On November 23, 2021 — while the People's appeal was pending — the Court of Appeals issued its decision in People v Buyund, 37 NY3d 532 (2021) (herein "Buyund 2"), overturning the Second Department's decision in Buyund 1 on procedural grounds, holding that since SORA registration does not constitute part of a defendant's sentence, the Second Department had erred in invoking the narrow exception to the preservation rule for unlawful sentences in granting defendant Buyund's unpreserved challenge to his SORA certification. Buyund 2 at 541. The Court of Appeals suggested that the Second Department, upon remission, "may still have authority to take corrective action in the interest of justice based upon defendant's unpreserved challenge to the legality of his certification as a sex offender," but noted that it did not have authority to act in the interest of justice. Id.

On March 2, 2022, the Second Department granted the People's appeal, overturning Justice Shillingford's decision and order and finding that CPL 440.20 did not authorize the Court to grant defendant's application to set aside that portion of his sentence that certified him as a sex offender, based largely on Buyund 2.

The Second Department's decision reads:

Appeal by the People from a resentence of the Supreme Court, Kings County (Ruth Shillingford, J.), imposed December 10, 2019, upon the granting of that branch of the defendant's motion which was pursuant to CPL 440.20 to set aside so much of a sentence of the same court imposed December 22, 2016, as certified him as a sex offender pursuant to Correction Law article 6-C, upon his conviction of attempted strangulation in the second degree as a sexually motivated felony, upon his plea of guilty.

ORDERED that the resentence is reversed, on the law, that branch of the defendant's motion which was pursuant to CPL 440.20 to set aside so much of a sentence of the same court imposed December 22, 2016, as certified him as a sex offender pursuant to Correction Law article 6-C is denied, and the sentence imposed December 22, 2016, is reinstated.

The defendant pleaded guilty to attempted strangulation in the second degree as a sexually motivated felony (Penal Law §§ 110.00, 121.12, 130.91[1]). The defendant was [*2]sentenced to a term of imprisonment followed by a period of postrelease supervision, and was certified as a sex offender under [SORA]. Prior to the defendant's release from prison, the defendant moved, inter alia, pursuant to CPL 440.20 to vacate his certification as a sex offender on the ground that his certification was unlawful because the crime he was convicted of was not a sex offense or a sexually violent offense under Correction Law § 168—a. The Supreme Court granted that branch of the defendant's motion and set aside so much of the sentence as certified the defendant as a sex offender and required him to pay a sex offender registration fee. The court then resentenced the defendant to the originally-imposed term of imprisonment and post-release supervision. The People appeal.

While a defendant's certification as a sex offender under SORA is part of the judgment of conviction (see id. § 168—d[1][a]; People v Hernandez, 93 NY2d 261 [1999]), "SORA certification is not part of a sentence" ([Buyund 2]; see People v Vere, 44 AD3d 690, 691 [2d Dept 2007]; People v Lisle-Cannon, 31 AD3d 467, 468 [2d Dept 2006]). Thus, the relief sought by the defendant was not available to him under CPL 440.20(1), which only authorizes a motion to set aside a sentence (see People v Lisle-Cannon, 31 AD3d at 468).

Based on the holding of the Second Department, defendant's case was remitted back to Kings County Supreme Court, to conduct the SORA proceedings necessitated by the reinstatement of defendant's original certification as a sex offender requiring SORA registration. Since Justice Shillingford was no longer at Kings County Supreme Court, the case was assigned to this Court.

In papers dated March 29, 2022, after the Second Department had remitted this case back to this Court to conduct SORA proceedings, but before any had been conducted, defendant filed a motion to dismiss all SORA proceedings against him pursuant to CPLR 3211, contending that documentary proof established that he was not a sex offender requiring registration under SORA definitions, based upon his conviction, and that therefore this Court had no subject matter jurisdiction.

By Decision and Order dated July 5, 2022, this Court denied defendant's motion, finding that CPLR 3211 provided no basis for relief, that this Court had a clear duty under SORA to conduct a hearing since the case had been remitted by the Second Department, and that the People would be unduly prejudiced if the relief sought was granted.

Defendant's appeal of this Court's denial of his CPLR 3211 motion is currently pending in the Second Department.

On September 14, 2022, this Court conducted the SORA hearing that the Second [*3]Department mandated.^[FN3]

The People, relying upon the Board's RAI and case summary from October 11, 2019, asked that defendant be classified as a Level Three sex offender, without designation or departure, as recommended by the Board (supra).

Defendant reiterated his position that he should not be given any risk level nor subjected to any SORA registration requirements because he was not convicted of a registerable offense. As to the hearing itself, defendant disputed the fifteen points assessed under factor eleven (for drug and alcohol abuse), as well as the fifteen points assessed under factor twelve (for being expelled from, and refusing to participate in, sex offender treatment programs while incarcerated for this offense). Defendant thus contended that his RAI should only score ninety points, making him a presumptive Level Two sex offender, from which he then sought a downward departure to Level One, submitting to the Court that: he was "not the angry young man he was when entered prison;" he was compliant with parole; he had rehabilitated himself; he had been in the community without committing any offenses for two-and-one-half years; he was a valued worker, committed family member, and productive member of society; and his certification as a sex offender and requirement to register for conviction based on a non-registerable offense already unfairly subjects him to a lifetime of potential harassment.

The People opposed defendant's request for a downward departure.

This Court agreed that defendant should not have been assessed fifteen points under factor eleven, making him a presumptive Level Two sex offender, but denied his request for a downward departure, thereby adjudicating him a Level Two sex offender without designation.

Defendant's appeal of this Court's SORA determination is also currently pending in the Second Department.

Now, in papers dated July 8, 2025, defendant yet again seeks to excise the SORA certification and registration requirements from his negotiated plea, this time moving to vacate his judgment of conviction pursuant to CPL 440.10(1)(h), contending that his "mistaken" SORA registration for a non-registerable sexually motivated felony violates a constitutionally protected liberty interest, and, upon vacature, to reinstate his judgment of conviction without the provision certifying him as a sex offender, pursuant to CPL 440.10(4).

Defendant relies on People v Richardson, 237 AD3d 1266 (3d Dept 2025) for the proposition that he has a constitutionally protected liberty interest in "not being misclassified as a sex offender and required to register under SORA" (237 AD3d at 1268-1269, quoting People v Brown, 41 NY3d 279, 300 [2023]), as well as for the proposition that this Court has the authority to vacate his judgment of conviction by modifying it only to the extent of removing the provision certifying him as a sex offender pursuant to CPL 440.10(4) (which directs this Court to dismiss the accusatory instrument, order a new trial, or "take such other action as is appropriate in the circumstances") (id at 1269).

The People oppose in papers dated September 26, 2025, contending that defendant's [*4]motion must be denied under CPL 440.10(2)(c) because he could have raised the claims presented herein on appeal, but unjustifiably failed to take one, and that CPL 440.10 does not grant this Court the power to vacate his judgment of conviction in the interests of justice on the basis of an unpreserved claim. The People also submit that Richardson is inapposite here because the Third Department had no occasion to address the procedural bar presented by CPL 440.10(2)(c), and note that the relief that was granted therein was an exercise of discretion in the interest of justice by the Third Department with the People's consent. Finally, in a footnote, the People note that, if this Court vacates defendant's judgment, they would be entitled to withdraw their consent to the plea and have the case returned to its pre-plea posture pursuant to CPL 440.10(8) (which directs this Court restore defendant's case to its prepleading status since his conviction is based on a guilty plea).

In reply papers dated October 27, 2025, defendant notes that there is no dispute that defendant has not been convicted of a registerable offense, disputes the People's contention that Richardson is not controlling here, and maintains that he is not asking this Court to exercise a "non-existent" interest of justice jurisdiction. Defendant also disputes the procedural bar raised by the People, contending that his failure to raise the instant claim on appeal was justifiable, insofar as it was unpreserved and an appeal predicated thereon would have been frivolous. Lastly, defendant contends that any prejudice to the People that might ensue if his motion is granted was a result of their own decision to allow defendant to plead guilty to an offense that was not SORA-registerable.

Defendant's motion is procedurally barred, meritless, and contrary to the interest of justice.

This Court must deny defendant's instant motion if there were sufficient facts on the record to have raised his instant claims on appeal, but he unjustifiably failed to take one. CPL 440.10(2)(c).

The People contend that defendant's motion must be denied under this provision because he could have raised a claim similar to the raised in Buyund 1, but unjustifiably failed to do so.

Defendant argues that his failure to take an appeal and raise this claim was justifiable, insofar as Buyund 1 was not decided until after defendant's time to perfect an appeal had lapsed.

The Court agrees that defendant's failure to take an appeal raising the instant claim is justifiable, but not for the reason advanced by defendant. The more compelling justification for defendant's so-called "failure" to take an appeal raising the instant claim is that such an appeal would itself have been unjustifiable. Defendant's negotiated disposition explicitly included the requirement to register for SORA, so the bargain was fulfilled. Moreover, defendant had waived his right to appeal.

Here, defendant's decision not to appeal his judgment raising the instant claims in a timely fashion was completely justifiable — indeed, defendant can hardly be said to have "failed" to take an appeal at all. Thus, the Court's rejects the People's claim that CPL 440.10(2)(c) provides a procedural bar here.

However, another procedural bar — CPL 440.10(3)(c) — permits this Court to deny defendant's instant motion if there were sufficient facts on the record to have raised his instant claims on a prior CPL Article 440 motion, but did not do so. Notably, this procedural bar does not allow for consideration of whether the failure to raise instant claims on the prior motion was "justifiable," although it does allow this Court discretion to nevertheless grant defendant's motion if it is otherwise meritorious and "in the interest of justice and for good cause shown." (Id.)

Here, defendant's prior CPL 440.20(1) motion raised substantially the same claims he now raises, but defendant did not also seek relief under CPL 440.10(1) in that motion. Under CPL 440.30(1), a defendant who submits a CPL 440.10(1) or CPL 440.20 motion "should raise every such ground upon which he or she intends to challenge the judgment or sentence."

Since defendant failed to raise the instant claim as a challenge to his judgment of conviction on his prior CPL 440.20 motion to set aside his sentence, and since the interest of justice heavily militates against granting his instant motion (see infra), it is denied in this Court's discretion. CPL 440.10(3)(c) and 440.30(1).

A close look at Richardson, upon which defendant's motion relies so heavily, reveals that there are salient distinctions between that case and this one, which render it inapposite here.

1. Facts of Richardson ^[FN4]

On December 23, 2023, Richardson was arrested for masturbating in a Barnes and Noble bookstore in a shopping mall in the Town of Colonie, New York, from which he previously had been banned, and subsequently indicted for one count of Burglary in the Second Degree as a Sexually Motivated Felony (Penal Law §§ 140.20 and 130.91[1]), and one count of Public Lewdness (Penal Law § 245.00). Notably, post-Buyund 1, neither of these offenses would constitute a registerable sex offense under Correction Law § 168-a(2).

On February 14, 2012, Richardson pled guilty to third degree burglary as a sexually motivated felony, with a negotiated disposition of four years in prison with fifteen years post-release supervision. The court promised to sentence Richardson as a predicate offender, rather than as a persistent felony offender, based on his 2007 conviction for first degree criminal contempt, and he agreed to waive his appellate rights and to abide by an order of protection. Richardson, his attorney, the prosecution, and the court all expressed an understanding that Richardson would have to pay a sex offender registration fee. Beyond that, Richardson's sex offender registration requirement was never discussed, and does not appear to have been part of the negotiated disposition, so much as a foregone conclusion because he was pleading to a sexually motivated felony, in accordance with the common understanding of the legal community at that time. Indeed, Richardson's attorney later stated that he did not challenge the legality of SORA certification because he was unaware of any legal challenges that could have been made or any case law supporting the position that a sexually motivated felony was not a registerable offense.

At Richardson's sentencing on April 10, 2012, he was given the prison and post-release [*5]supervision terms that had been negotiated, and adjudicated a predicate offender as promised by the court. An order of protection was issued, and Richardson was told that he was required to comply with [SORA] upon his release from prison.

Richardson did not appeal this conviction because, as noted above, his counsel was unaware of any legal challenges that could have been made, nor of any case law supporting the position that a sexually motivated felony was not a registerable offense.

After Richardson's release in 2105, he was classified as a Level Three sex offender. That classification was affirmed by the Third Department.

In 2023, Richardson moved to vacate only that part of his judgment of conviction that certified him as a sex offender pursuant to CPL 440.10(1)(h), contending that counsel rendered ineffective assistance by failing to object to his certification as a sex offender because third degree burglary as a sexually motivated felony was not a SORA-registerable offense under Buyund 1. At oral argument on the motion, the People explained that they opposed the CPL 440.10 motion because Richardson's counsel had in fact rendered effective assistance, though they conceded that Richardson should not have had to register under SORA, and suggested he could still pursue coram nobis relief. The nisi prius court denied Richardson's motion, finding that counsel had rendered effective assistance "in the legal landscape that existed when [Richardson] was certified a sex offender."

On direct appeal of the denial of Richardson's CPL 440.10 motion, the only claim Richardson raised was that his trial counsel had rendered ineffective assistance, as alleged in his motion. Richardson did not raise a constitutionally-based claim that his "liberty interest in not being classified as a sex offender and required to register under SORA" was violated, and he did not contend that CPL 440.10(4) allowed the court to excise only that part of his judgment that certified him as a sex offender and required him to register under SORA "as is appropriate in the circumstances." These issues only surfaced for the first time later.

The People opposed Richardson's appeal, again contending that counsel had rendered effective assistance, but expressed to the Third Department that they would consent to the relief sought by Richardson if it were sought by writ of error coram nobis.

At oral argument on the appeal, while the People maintained that the nisi prius decision denying Richardson's CPL 440.10 motion should be affirmed because his counsel had rendered effective assistance, they again conceded that they did not oppose vacature of that part of his judgment of conviction that certified him as sex offender — the ultimate and discrete relief sought — going so far as to say that Richardson could, and still should, seek that relief in alternative ways.

The Third Department agreed that Richardson's counsel did not render ineffective assistance. However, rather than affirm the lower court's denial of Richardson's CPL 440.10 motion, the Third Department — finding sua sponte that Richardson had been clearly harmed by his misclassification as a sex offender, and noting the People's lack of opposition — fashioned a remedy, never briefed by the parties, that granted defendant's motion as an "exercise of discretion . . . in the interest of judicial economy" and "in the interest of justice," to the extent of vacating only that part of Richardson's judgment that had certified as a sex offender requiring SORA registration.

The Third Department circumvented the mandates of CPL 440.10(8) — which would have [*6]required restoration of Richardson's case to its prepleading status, since his conviction was based on a guilty plea — by relying on CPL 440.30(4), which permits the court not only to dismiss the accusatory instrument or order a new trial, but also to "take such other action as is appropriate in the circumstances."^[FN5]

The People did not appeal the Third Department's ruling, which is hardly surprising, given that they agreed in principle that Richardson was ultimately entitled to the relief he had obtained.

2. Key Distinctions

Although, at first blush, defendant's case and Richardson appear to align, inasmuch as both involve convictions for offenses that post-Buyund 1 would not be considered SORA-registerable. There are, however, several critical distinctions.

First, as the People aptly note, neither of the offenses that Richardson was indicted for were SORA-registerable post-Buyund 1. Thus, vacating Richardson's judgment and restoring his case to its pre-pleading status pursuant to CPL 440.10(8) could not have resulted in a disposition that would require SORA certification and registration. In this case, however, defendant was indicted for multiple offenses that are still SORA-registerable post-Buyund 1, including first degree rape, first degree sexual abuse, and sexual misconduct. Cf. Corrections Law § 168-a(2). Thus, restoring this case to its pre-pleading status pursuant to CPL 440.10(8) could still result in a judgment requiring SORA certification and registration. And, as the People also note, in Richardson, unlike here, the Third Department had no occasion to address any procedural bars to granting CPL 440.10 relief.

Insofar as defendant contends that he, like Richardson, was mistakenly required to register under SORA, he is only half right. Richardson's certification as a sex offender was clearly a mistake, based on assumptions by all of the parties that Buyund 1 later belied, and was, by all appearances, not an expressed component of his negotiated disposition. Indeed, Richardson's trial counsel stated that he did not challenge the legality of Richardson's SORA certification because he was unaware of any legal challenges that could have been made, nor any case law supporting the position that a sexually motivated felony was not a registerable offense.

Defendant's certification as sex offender here, on the other hand, is clearly not a mistake: it is an explicit component of his negotiated disposition, bargained for and agreed upon. To the extent that defendant has a constitutionally protected liberty interest in "not being misclassified as a sex offender," he explicitly and unequivocally waived that right when he entered his negotiated guilty plea that required SORA registration, which explains why he acquiesced to his SORA certification when he was sentenced, and why he never filed an appeal challenging it.

Additionally, in Richardson, the solution reached by the Third Department in order to vacate only that part of Richardson's judgment that certified him as a sex offender circumvented CPL 440.10(8) (which would have required restoring Richardson's case to its pre-pleading status, and thus required him to file a new motion seeking the same relief) by invoking the provision of CPL 440.10(4) that allows the motion court "to take such other action as is appropriate in the circumstances" as an exercise of discretion, and in the interests of justice and judicial economy. [*7]Since the People readily conceded that Richardson was ultimately entitled to the relief he sought, and all of the other unique circumstances of that case, the decision of the Third Department was entirely appropriate there.

Here, on the other hand, vacating only that part of defendant's judgment that certifies him as a sex offender would most assuredly not be appropriate in the circumstances, inasmuch as the People do not concede, and would be unduly prejudiced by that relief because defendant (unlike Richardson) could still be convicted of a SORA-registerable offense if his case was returned to its pre-pleading status.

Finally, the conduct for which Richardson was indicted — masturbating in a Barnes and Noble in a suburban shopping mall — is orders of magnitude less egregious than the conduct for which this defendant was indicted — viciously raping, strangling, and brutally assaulting a prostitute on a city street. Indeed even Richardson's predicate felony (first degree criminal contempt, a class E felony) is less serious than defendant's (attempted robbery in the second degree, a class D felony).

Thus, Richardson is sufficiently distinguishable from this case to render it inapposite here.

Although CPL 440.10(3) gives this Court discretion to grant defendant's motion in the interest of justice and for good cause shown, in spite of defendant's failure to raise the instant claims on his prior CPL 440.20 motion, it does not enumerate any specific factors that this Court should consider in evaluating the interest of justice. However, CPL 210.40(1) — which codifies the factors a court should consider on a motion to dismiss an indictment in furtherance of justice — does. See also People v Clayton, 41 AD2d 204 (2d Dept 1973). Those factors are particularly illuminating here, and none of them militate in favor of granting defendant interest of justice relief.

Defendant was charged with serious, heinous, and exceedingly violent crimes, whose harms go far beyond the physical wounds he allegedly inflicted while raping, beating, and strangling the victim, and his admissions to the police and sworn plea to this Court amply establish his guilt.

The Court notes that defendant was sentenced as a second felony offender, based on his July 6, 2006, judgment of conviction for attempted robbery in the second degree. The Court further notes that defendant also has a May 16, 2011, judgment of conviction for robbery in the third degree, which is a class D felony.

There have been no allegations of any misconduct — much less serious misconduct — by law enforcement in defendant's arrest or prosecution.

"The governmental interest advanced by SORA is, of course, the protection of the community against people who have shown themselves capable of committing sex crimes." People v Knox, 12 NY3d 60, 67 (2009). Here, defendant has been adjudicated a Level Two sex offender. Granting defendant's instant motion thus runs contrary to SORA's intent, and would adversely impact the safety and welfare of the community, which would be unprotected by notification of his presence. This, in turn, would have a deleterious impact upon the confidence of the public in the criminal justice system.

Thus, considering the totality of the circumstances, in this Court's discretion the interest of justice dictates denial of defendant's instant motion because the relief requested therein would not only be patently unfair to the People, but would also have deleterious impacts on the safety and welfare of the community and upon the public's confidence in the criminal justice system.

If defendant wants this Court to rescind his duly negotiated SORA certification and registration requirements, the only equitable way to grant that relief is to vacate his plea entirely and restore him to his pre-conviction status pursuant to CPL 440.10(8). However, defendant has previously abjured that relief, and does not seek it now.

For all of the foregoing reasons, defendant's motion is denied.

This shall constitute the Decision and Order of the Court.