People v. Stewart
Docket 2024-13010
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- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Criminal Appeal
- Disposition
- Affirmed in Part, Reversed in Part
- Citation
- 2026 NY Slip Op 02681
- Docket
- 2024-13010
Appeal from a County Court order designating defendant a level three sexually violent offender under the Sex Offender Registration Act following a hearing.
Summary
The Appellate Division reviewed a County Court order that had designated Joshua Stewart a level three sexually violent offender under New York's Sex Offender Registration Act after his New Jersey conviction for promoting child prostitution. The court upheld the risk-point scoring and refused a downward departure, finding the Guidelines had adequately considered mitigating factors. However, the panel held that applying Correction Law § 168-a(3)(b) to label him a "sexually violent offender" was unconstitutional as applied because the underlying New Jersey offense would not qualify as a sexually violent offense under New York law. The court therefore modified the designation to "level three sex offender" and affirmed as modified.
Issues Decided
- Whether the County Court properly scored the defendant under the Sex Offender Registration Act risk assessment instrument (risk factors 2 and 4).
- Whether the County Court abused its discretion by denying a downward departure from the presumptive level three designation.
- Whether designating the defendant a "sexually violent offender" under Correction Law § 168-a(3)(b) based on a New Jersey conviction that would not qualify as sexually violent in New York is constitutional as applied.
Court's Reasoning
The court found the scoring under risk factors 2 and 4 was supported because the defendant could be held liable as an accessory for multiple sexual acts by others, including intercourse, over a sustained period, which the Guidelines and Penal Law accessories doctrine permit. The court also held that family support and employment were already considered under risk factor 15, so no downward departure was required and the totality of mitigating factors did not overcome the presumptive risk level. Finally, because the New Jersey offense would not meet New York's statutory definition of a sexually violent offense, applying Correction Law § 168-a(3)(b) to label him "sexually violent" was unconstitutional as applied, so that portion of the designation was removed.
Authorities Cited
- Sex Offender Registration Act: Risk Assessment Guidelines and Commentary[2006]
- New York Penal Law§ 20.00
- People v Gillotti23 NY3d 841
- People v Marte236 AD3d 938
- People v Greenridge224 AD3d 852
- People v Edwards246 AD3d 37
Parties
- Appellant
- Joshua Stewart
- Respondent
- The People of the State of New York
- Judge
- Hector D. Lasalle, P.J.
- Judge
- Cheryl E. Chambers
- Judge
- Janice A. Taylor
- Judge
- Phillip Hom
Key Dates
- Decision date
- 2026-04-29
- County Court order date
- 2024-12-04
What You Should Do Next
- 1
Comply with registration requirements
Stewart should ensure he continues to comply with all New York sex-offender registration requirements applicable to a level three sex offender.
- 2
Consult appellate counsel
Either party wishing to challenge the modification or seek further review should consult counsel about filing for leave to appeal to the Court of Appeals and any applicable deadlines.
- 3
Review risk-assessment record
Defense counsel may review the risk-assessment record and court findings to determine whether any additional factual or legal grounds exist for further relief or resentencing.
Frequently Asked Questions
- What did the court decide?
- The court upheld the risk-level scoring and denial of a downward departure but removed the "sexually violent offender" label as unconstitutional as applied, leaving a designation of "level three sex offender."
- Who is affected by this decision?
- Joshua Stewart, who was designated a level three sex offender based on a New Jersey conviction and must comply with New York's sex-offender registration at that level.
- Why was the "sexually violent offender" label removed?
- Because the underlying New Jersey offense would not qualify as a sexually violent offense under New York law, applying Correction Law § 168-a(3)(b) in this case was unconstitutional as applied.
- Can this decision be appealed further?
- Yes, the People or the defendant could seek leave to appeal to the New York Court of Appeals, subject to appellate rules and deadlines.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
People v Stewart - 2026 NY Slip Op 02681 People v Stewart 2026 NY Slip Op 02681 April 29, 2026 Appellate Division, Second Department The People of the State of New York, respondent, v Joshua Stewart, appellant. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on April 29, 2026 2024-13010 Hector D. Lasalle, P.J. Cheryl E. Chambers Janice A. Taylor Phillip Hom, JJ. Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Shiry Gaash and Lauren Tan of counsel), for respondent. DECISION & ORDER Appeal by the defendant from an order of the County Court, Suffolk County (Karen M. Wilutis, J.), dated December 4, 2024, which, after a hearing, designated him a level three sexually violent offender pursuant to Correction Law article 6-C. ORDERED that the order is modified, on the law and the facts, by deleting the provision thereof designating the defendant a level three sexually violent offender, and substituting therefor a provision designating the defendant a level three sex offender; as so modified, the order is affirmed, without costs or disbursements. The defendant was convicted in New Jersey of, inter alia, promoting child prostitution in violation of NJSA 2C:34-1(b)(3). After the defendant moved to New York, the County Court, after a hearing, designated the defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C). The defendant appeals. Contrary to the defendant's contention, the County Court properly assessed 25 points under risk factor two and 20 points under risk factor 4 of the risk assessment instrument. The defendant could be assessed points under a theory of accessorial liability for the three or more sexual acts, including at least one act of sexual intercourse, committed by the men who paid for sexual activity with the victim over a period of at least two weeks ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [hereinafter Guidelines] at 7, 9-10 [2006]; Penal Law § 20.00; People v Marte , 236 AD3d 938, 939; People v Greenridge , 224 AD3d 852, 854). The County Court providently exercised its discretion in denying the defendant's application for a downward departure from his presumptive risk level three designation. The defendant's family support and employment were adequately taken into account by risk factor 15 (living/employment situation), for which the defendant was not scored any points ( see People v Wagers , 243 AD3d 931, 934; People v Emery , 204 AD3d 944, 945). To the extent that the defendant demonstrated the existence of other mitigating factors not adequately taken into account by the Guidelines, the totality of the circumstances did not warrant a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism ( see People v Gillotti , 23 NY3d 841, 861). The defendant was designated a sexually violent offender pursuant to Correction Law § 168-a(3)(b) because his New Jersey conviction required him to register as a sex offender in New Jersey. As the People concede, if the defendant had committed the same conduct in New York, he could not have been designated a sexually violent offender. Under the circumstances, Correction Law § 168-a(3)(b) is unconstitutional as applied to the defendant ( see People v Edwards , 246 AD3d 37, 44-47). LASALLE, P.J., CHAMBERS, TAYLOR and HOM, JJ., concur. ENTER: Darrell M. Joseph