On April 29, 2026, the Second Department Appellate Division issued an important Sex Offender Registration Act (“SORA”) decision in People v. Stewart, 2026 NY Slip Op 02681. The court affirmed Joshua Stewart’s Level 3 risk classification, but struck, on constitutional grounds, a designation that labeled him a “sexually violent offender.”
A Level 3 classification addresses the court’s assessment of future risk. A “sexually violent offender” designation is a separate statutory label with its own stigma and lifetime legal consequences. Courts may not impose the SVO designation unless the statute permits it.
The Issue in Stewart
Stewart had been convicted in New Jersey of promoting child prostitution. After he moved to New York, Suffolk County Court designated him a Level 3 sexually violent offender under New York’s Sex Offender Registration Act.
On appeal, Stewart challenged both the risk-level determination and the sexually violent offender designation.
The Second Department upheld the Level 3 classification. It found that County Court correctly assessed points under the SORA guidelines and properly denied Stewart’s request for a downward departure.
But the court reached a different conclusion on the sexually violent offender designation.
Why the SVO Designation Was Improper
The SVO designation was based on New York Correction Law § 168-a(3)(b), which is often referred to as the “foreign registration clause.” On its face the foreign registration clause treats an out-of-state felony as a “sexually violent offense” if the person was required to register as a sex offender in the state of conviction.
The problem is that this shortcut can impose New York’s “sexually violent offender” label on a person whose conduct would not qualify for the SVO designation under New York law.
In Stewart, the People conceded that if Stewart had committed the same conduct in New York, he could not have been designated a sexually violent offender.
Relying on its recent decision in People v. Edwards, the Second Department held that Correction Law § 168-a(3)(b) was unconstitutional as applied to Stewart. The appeals court modified County Court’s order by removing the sexually violent offender designation.
The Court Preserved the Risk Level but Removed the Unlawful Label
The decision separates two questions that can get confused in SORA cases:
- What risk level should apply?
- Does the person legally qualify for a separate statutory designation, such as “sexually violent offender”?
A person can remain Level 3 and still have an improper SVO designation removed. The risk-level analysis and the statutory-designation analysis are separate, not interchangeable.
For people with out-of-state convictions, this issue can be consequential. New York courts do not simply rely on another state’s registration requirement to impose a harsher New York designation when the underlying conduct would not qualify for that designation here.
Why This Matters for SORA Registrants Moving to New York
The phrase “sexually violent offender” is a severe statutory label worthy of Nathaniel Hawthorne. Designation as an SVO affects how the public, courts, agencies, employers, and housing providers understand a person’s record.
When that label is legally unsupported, it should be challenged.
Stewart confirms that New York courts will look beyond the fact of out-of-state registration. If the New York equivalent offense would not be a sexually violent offense, the SVO designation may be unconstitutional as applied.
Call ZMO Law if You Were Unfairly Labeled a Sexually Violent Offender
If you or a loved one has been designated a sexually violent offender in New York based on an out-of-state conviction, that designation may be vulnerable to challenge in the SORA hearing court or on appeal.
ZMO Law PLLC represents clients in SORA proceedings, risk-level hearings, modification applications, and appeals. We can review the underlying conviction, compare it to New York law, and determine whether the SVO designation was legally imposed.
Contact ZMO Law PLLC today if you believe New York unfairly classified you as a sexually violent offender.