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Nowakowski v. People

United States Court of Appeals, Second Circuit

August 26, 2016

ROBERT NOWAKOWSKI, Petitioner-Appellant,

          Argued: October 14, 2015

         Appeal from a May 30, 2014, order of the United States District Court for the Eastern District of New York (Vitaliano, J.). Petitioner-Appellant Robert Nowakowski filed a petition for habeas relief under 28 U.S.C. § 2254 from a conviction for second-degree harassment. Because Nowakowski completed his sentence of conditional discharge, the District Court dismissed the petition as moot, concluding there was no continuing collateral consequence sufficient to confer standing. We granted a certificate of appealability to address two questions of first impression in our Circuit: (1) whether Nowakowski was "in custody" for the purposes of habeas review when he filed his petition during a period of conditional discharge requiring one day of community service; and (2) whether, despite the completion of that sentence, there are collateral consequences to his conviction. We conclude that Nowakowski was both "in custody" at the time his petition was filed and that, because the presumption of continuing collateral consequences applies to his conviction and is not rebutted, his petition presents a live case or controversy. We therefore VACATE the district court's dismissal of Nowakowski's habeas petition and REMAND for further proceedings.

          Robert Nowakowski, pro se, Brooklyn, NY.

          Victor Barall, Assistant District Attorney (Leonard Joblove, Assistant District Attorney, on the brief), for Kenneth P. Thomson, District Attorney for Kings County, Brooklyn, NY, for Respondent-Appellee.

          Before Straub, Wesley, and Livingston, Circuit Judges.

          Wesley, Circuit Judge:

         Petitioner-Appellant Robert Nowakowski was convicted of harassment in the second degree, an offense classified as a violation under state law, and sentenced to one year's conditional discharge, requiring one day of community service. Before completing this sentence, Nowakowski filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of New York (Vitaliano, J.). Because Nowakowski fulfilled the requirements of his sentence during the pendency of the habeas proceeding, the District Court concluded that Nowakowski's case presented no live case or controversy sufficient to establish Article III standing under Spencer v. Kemna, 523 U.S. 1 (1998).

         We granted a certificate of appealability with instructions to brief two questions of first impression we now answer: First, whether a sentence of conditional discharge and one day's community service, unfulfilled as of the time of filing the habeas petition, satisfies the "in custody" requirement of § 2254. And second, whether a presumption of continuing collateral consequences applies to Nowakowski's conviction, thus presenting a live case or controversy under Article III despite the expiration of his sentence. Because we answer both questions in the affirmative, we VACATE the District Court's dismissal of Nowakowski's petition and REMAND for further proceedings consistent with this opinion.[1]

         BACKGROUND [2]

         Robert Nowakowski was arrested on October 31, 2006, on charges of assault against another tenant in his building. He contends that these charges were fabricated by his landlord and his neighbors, including the now-deceased victim. After a bench trial, he was convicted of harassment in the second degree-which is classified as a violation under New York state law-in the Criminal Court of the City of New York on September 18, 2008, and ordered to pay a fine of $100. The sentence was stayed for over four years during post- conviction appeals and collateral proceedings. On May 14, 2013, the Criminal Court vacated the fine and sentenced Nowakowski to a one-year conditional discharge, requiring him to complete one day of community service within that time. This change in sentence occurred at Nowakowski's request because he could not afford the fine and administrative charges, which totaled $195.

         Pursuant to the amended sentence, the Kings County District Attorney's Office sent Nowakowski a "Notice of C.S. Obligation, " dated June 6, 2013. This notice informed Nowakowski that he had been referred for community service on July 2, 2013, with the Parks Department. It informed him that he was required to appear on that date in a specific location, that the date would "NOT be rescheduled, " and that if he failed to appear or complete the required service, "a warrant may be issued for [his] arrest." Appellant App. 18.[3]

         On July 1, 2013, Nowakowski filed a petition under 28 U.S.C. § 2254 for habeas relief. He then appeared and completed his community service before appearing in the Criminal Court on July 9, 2015, with proof of completion.[4] Prior to filing his federal habeas petition, Nowakowski had filed a pro se civil complaint in the United States District Court for the Eastern District of New York, alleging violations of 42 U.S.C. § 1983 by arrest and imprisonment without probable cause, assault and excessive force, and the state tort of malicious abuse of process. See Second Am. Compl., Nowakowski v. City of New York et al., No. 1:08-cv-00399-RJD-LB (E.D.N.Y., ECF No. 17. His civil action remains stayed pending resolution of his federal habeas proceeding.

         On November 7, 2013, the District Court initially dismissed Nowakowski's petition without prejudice, because it contained an unexhausted claim of ineffective assistance of appellate counsel. Nowakowski both moved to vacate the dismissal, stating he wished to delete his unexhausted claim and proceed only on his exhausted claims, and filed a motion in our Court for a certificate of appealability. We construed the motion as one for remand to the District Court for consideration of his Rule 59(e) motion and granted it. On April 2, 2014, the District Court reopened Nowakowski's case and granted Nowakowski's motion for reconsideration, allowing his exhausted claims to proceed.

         Following briefing, the District Court concluded that the expiration of Nowakowski's conditional discharge on May 14, 2014, rendered his petition moot, unless Nowakowski could demonstrate a continuing collateral consequence under Spencer, supra. Nowakowski argued that his conviction would preclude his § 1983 action from proceeding under Heck v. Humphrey, 512 U.S. 477 (1994); the District Court held that Spencer rejected this argument against mootness as an insufficient collateral consequence. Thus, the District Court entered a Memorandum and Order on May 30, 2014, dismissing the petition as moot and denying a certificate of appealability. Nowakowski moved for a certificate of appealability in this Court, which we granted. See Order, Nowakowski v. New York, No. 14-1964 (2d Cir. Dec. 8, 2014), ECF No. 21.


         We review de novo a district court's denial of a § 2254 petition, including whether a petitioner was in custody at the time of filing, see Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011), and whether his petition is moot, Marrero Pichardo v. Ashcroft, 374 F.3d 46, 50-51 (2d Cir. 2004). As Nowakowski briefed and argued this case pro se, we construe his "appellate briefs and submissions liberally and interpret them to raise the strongest arguments they suggest." Wright v. Comm'r, 381 F.3d 41, 44 (2d Cir. 2004).


         The first question we must decide is whether Nowakowski was "in custody" and thus able to seek federal habeas relief.[5] In order for a federal court to have jurisdiction over a habeas petition, the petitioner must be "in custody pursuant to the judgment of a State court" at the time the petition is filed. 28 U.S.C. § 2254(a); Maleng v. Cook, 490 U.S. 488, 490-91 (1989).

         Despite the "chief use of habeas" being "the release of persons held in actual, physical custody in prison or jail, " the Supreme Court has affirmed "that, besides physical imprisonment, there are other restraints on a man's liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus." Jones v. Cunningham, 371 U.S. 236, 240 (1963); see also id. at 238. The Jones Court found jurisdiction where an individual was released from imprisonment on parole subject to explicit conditions-for example, regular reporting to his parole officer; remaining in a particular community, residence, and job; and refraining from certain activities. Id. at 242. The Supreme Court has likewise found jurisdiction where a petitioner was released on his own recognizance prior to trial but had to appear in criminal court when ordered and where failure to do so would result in issuance of an arrest warrant. See Hensley v. Mun. Court, San Jose- Milpitas Judicial Dist., 411 U.S. 345, 351 (1973); see also Justices of Bos. Mun. Court v. Lydon, 466 U.S. 294, 300-01 (1984) (finding jurisdiction over petitioner released on his own recognizance prior to trial "subject to the conditions that he would appear when ordered by the court, that he would waive extradition if he was apprehended outside the State, and that a court could revoke the order of release and require that he be returned to confinement or post bail").

         The Courts of Appeals, including ours, have recognized that a variety of nonconfinement restraints on liberty satisfy the custodial requirement. See, e.g., Earley v. Murray, 451 F.3d 71, 75 (2d Cir. 2006) (post-release supervision); Barry v. Bergen Cty. Prob. Dep't, 128 F.3d 152, 160-62 (3d Cir. 1997) (500 hours of community service); Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 894- 95 (2d Cir. 1996) (banishment from tribal land); Dow v. Circuit Court of First Circuit Through Huddy, 995 F.2d 922, 923 (9th Cir. 1993) (per curiam) (mandatory fourteen-hour alcohol rehabilitation program); Sammons v. Rodgers, 785 F.2d 1343, 1345 (5th Cir. 1986) (per curiam) (unexpired suspended sentence); United States ex rel. B. v. Shelly, 430 F.2d 215, 217 n.3 (2d Cir. 1970) (probation). Those cases where courts have declined to find the petitioners sufficiently "in custody" have typically involved the imposition of fines or civil disabilities, such as suspension of licenses. See, e.g., Barnickel v. United States, 113 F.3d 704, 706 (7th Cir. 1997) (restitution); United States v. Michaud, 901 F.2d 5, 7 (1st Cir. 1990) (per curiam) (monetary fine); Lefkowitz v. Fair, 816 F.2d 17, 20 (1st Cir. 1987) (suspension of medical license); Lillios v. New Hampshire, 788 F.2d 60, 61 (1st Cir. 1986) (per curiam) (fine and temporary suspension of driver's license); Ginsberg v. Abrams, 702 F.2d 48, 49 (2d Cir. 1983) (per curiam) (revocation of law, real estate, and insurance licenses); see also Maleng, 490 U.S. at 492 (collateral consequences of a completed sentence do not constitute custody).

         The custody inquiry therefore "requires a court to judge the 'severity' of an actual or potential restraint on liberty." Poodry, 85 F.3d at 894. Though the language of habeas cases often refers to "severe restraints on individual liberty" or "cases of special urgency, " Hensley, 411 U.S. at 351, these terms describe the nature, rather than the duration, of the restraint. It is evident that a single day of incarceration would be sufficient custody for jurisdiction if the petitioner filed while subject to such a sentence. Similarly, courts have considered even restraints on liberty that might appear short in duration or less burdensome than probation or supervised release severe enough because they required petitioners to appear in certain places at certain times, thus preventing them from exercising the free movement and autonomy available to the unrestricted public, or exposed them to future adverse consequences on discretion of the supervising court. See id. (custody satisfied where petitioner was required to appear in court when ordered and subject to revocation of release); Barry, 128 F.3d at 161 (despite flexibility in scheduling, requirements "to be in a certain place-or in one of several places-to attend meetings or to perform services" are clearly "restraints on [petitioner's] liberty not shared by the public generally"); Dow, 995 F.2d at 923 (mandatory class attendance and "physical presence at a particular place" constituted custody, despite lasting only fourteen hours over three days); Sammons, 785 F.2d at 1345 (potential of revocation of suspended sentence or other adverse action during term sufficient for custody).

         With these examples in mind, we turn to the facts before us, which are uncontested. Although the Criminal Court initially imposed a fine of $100, it vacated this sentence and replaced it with a one-year conditional discharge and an order that Nowakowski perform one day of community service. At the time of the petition's filing, therefore, the Criminal Court required Nowakowski (1) to complete a day of community service (2) by a particular date and (3) to report to the Criminal Court upon completion of that service. Pursuant to these requirements, Nowakowski received a "Notice of C.S. Obligation" from the Kings County District Attorney. The Notice commanded that Nowakowski appear at a particular location at a particular time on a particular day, and informed him that he had no opportunity to reschedule the date and that failure to appear could result in the issuance of a bench warrant. In addition, during the one-year term of his sentence-which lasted for nine months after his petition was filed-the Criminal Court retained jurisdiction to modify or enlarge the conditions of, or to revoke entirely, the conditional discharge. See N.Y. Penal Law § 65.05[2].

         Nowakowski's sentence falls within the category of restraints that satisfy the statutory requirement of custody.[6] These restrictions are "not shared by the public generally, " Jones, 371 U.S. at 240, require Nowakowski's physical presence at particular times and locations, both for community service and court appearances, see Barry, 128 F.3d at 161; Dow, 995 F.2d at 923, and carry with them the potential for future adverse consequences during the term of the sentence, including arrest for noncompliance and modification or revocation of the conditional discharge, [7] see Hensley, 411 U.S. at 351; Sammons, 785 F.2d at 1345. They are wholly unlike the economic penalties suffered in fine-only or license- revocation sentences, where the punishments "implicate only property, not liberty." Barry, 128 F.3d at 161. Consequently, we conclude that, at the time the petition was filed, Nowakowski was "in custody" within the meaning of § 2254.


         The second question we must answer is whether Nowakowski's case is moot. Unlike the "in custody" requirement, mootness is not fixed at the time of filing but must be considered at every stage of the habeas proceeding. See Carafas v. LaVallee, 391 U.S. 234, 237 (1968). Once, as here, a petitioner's sentence has expired, "some concrete and continuing injury other than the now-ended incarceration or parole-some 'collateral consequence' of the conviction-must exist if the suit is to be maintained." Spencer, 523 U.S. at 7. In Spencer, the Court conducted a two-step analysis: First, the Court determined whether a presumption of "continuing collateral consequences" should apply. Id. at 8. And second, the Court determined whether, applying the presumption or not, there was sufficient evidence that such consequences in fact existed. Id. at 14; accord United States v. Mercurris, 192 F.3d 290, 293 (2d Cir. 1999). We conduct each inquiry in turn.


         Spencer traced more than forty years of Supreme Court precedent to explain the development of the presumption of continuing collateral consequences after its first articulation in Sibron v. New York, 392 U.S. 40 (1968). The Court observed that it applied the presumption only to "criminal convictions" and expressly declined to extend it outside of that context to parole revocation. Spencer, 523 U.S. at 9-13; see also Lane v. Williams, 455 U.S. 624, 632-33 (1982). In so doing, it candidly acknowledged that such a presumption "sits uncomfortably beside the long-settled principle" that Article III standing cannot be inferred and that the proponent of jurisdiction bears the burden of demonstrating it. Spencer, 523 U.S. at 10-11 (internal quotation marks omitted). It further considered "of particular relevance" that, with criminal convictions, "the presumption of significant collateral consequences is likely to comport with reality, " calling this observation "'an obvious fact of life.'" Id. at 12 (quoting Sibron, 392 U.S. at 55). The Court's clear reluctance to extend the Sibron presumption outside of this narrow category has guided our Court in declining to apply it when the defendant does not challenge a criminal conviction. See Mercurris, 192 F.3d at 293 (sentencing enhancement); United States v. Probber, 170 F.3d 345, 348 (2d Cir. 1999) (revocation of supervised release).

         Spencer-as well as our opinions in Mercurris and Probber-may be fairly characterized as declining to apply the presumption to cases in which something ancillary to a conviction was challenged, even if of a criminal nature.[8] Here, by contrast, it is evident that Nowakowski challenges a conviction. What is disputed is whether this conviction is criminal, for reasons that will shortly become clear. Our Circuit's precedent has never answered this question, nor has the Supreme Court spoken on the subject in the context of the Sibron presumption. Therefore, we proceed cautiously, examining the nature of the offense of which Nowakowski was convicted and drawing on principles in other areas of law where the Supreme Court has addressed similar considerations.

         Before commencing our analysis, we think it necessary to explain briefly the New York scheme of penal offenses. The New York Penal Law defines an "offense" as "conduct for which a sentence to a term of imprisonment or to a fine is provided" by a state or local law, ordinance, or regulation. N.Y. Penal Law § 10.00[1]. The Penal Law categorizes each offense as one of four types, listed here in descending order of seriousness: a felony, a misdemeanor, a violation, and a traffic infraction. Id. § 10.00[2]-[5]. Of these four, only a felony and a misdemeanor are labeled "[c]rime[s]." Id. § 10.00[6]. Violations are offenses, other than traffic infractions, "for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed." Id. § 10.00[3]. Misdemeanors permit incarceratory sentences of up to one year, while felonies permit incarceratory sentences over one year. Id. § 10.00[4]-[5]. Traffic infractions are violations of the Vehicle and Traffic Law, "which [are] not declared by this chapter or other law of this state to be a misdemeanor or a felony." N.Y. Veh. & Traf. Law § 155.

         In the case before us, Nowakowski was convicted of harassment in the second degree, which New York classifies as a violation. See N.Y. Penal Law § 240.26. Thus, the critical question is whether, taking into account New York's decision not to label violations as crimes, Nowakowski's conviction is nonetheless "criminal" for purposes of the Sibron presumption.

         We start from first principles. The Sibron presumption is a judicial doctrine concerning mootness under Article III. See Liner v. Jafco, Inc., 375 U.S. 301, 304 (1964). Whether a case is moot is a question of federal, not state, law. See id. As a result, we must determine whether Nowakowski's conviction is civil or criminal in nature by reference to federal principles-state law provides the necessary facts underlying the question, but federal law provides the rule of decision. See, e.g., United States v. Juvenile Male, 131 S.Ct. 2860, 2864 (2011) (per curiam) (analyzing a certified question of Montana law to determine whether the doctrine of continuing collateral consequences was satisfied). For several reasons, we think the Supreme Court's cases determining the applicability of federal constitutional protections are the most relevant precedents upon which to draw. See, e.g., Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165-68 (1963) (concluding constitutional criminal protections apply where Congress applies a punitive sanction); see also, e.g., Allen v. Illinois, 478 U.S. 364, 368 (1986) (conducting same analysis with respect to sanctions imposed by state law).

         First, the inquiries are identical in the question presented: whether a particular proceeding is civil or criminal in nature under federal law. See Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 630 (1988) (endorsing "the characterization of this proceeding and the relief given as civil or criminal in nature, for purposes of determining the proper applicability of federal constitutional protections" as raising "a question of federal law rather than state law"). And second, both the civil-criminal analysis and the Sibron presumption are judicially created doctrines that give effect to constitutional requirements. See Kennedy, 372 U.S. at 167-68; Sibron, 392 U.S. at 50. Consequently, we see no reason why, if Nowakowski's conviction is "criminal" for purposes of federal constitutional protections, it should not be criminal for purposes of the Sibron presumption, [9]and so we apply the former analysis here.

         The Supreme Court has observed that "[t]he categorization of a particular proceeding as civil or criminal is first of all a question of statutory construction." Kansas v. Hendricks, 521 U.S. 346, 361 (1997) (internal quotation marks omitted). In construing statutes, we endeavor to "determine the legislative objective"-i.e., to establish either a civil regulatory penalty or a criminal punishment. Smith v. Doe, 538 U.S. 84, 92 (2003). We start with the fact that New York does not formally classify violations as "crimes." See N.Y. Penal Law § 10.00[6]. Where a legislature has expressly designated a sanction as "civil, " that may in some cases suffice to demonstrate evidence of intent. See Allen, 478 U.S. at 368 (describing an express label of a proceeding as "civil" as indicating the state's intent "to proceed in a nonpunitive, noncriminal manner"); United States v. Ward, 448 U.S. 242, 249 (1980) (observing Congress labeled a particular sanction as a "civil penalty"). Here, rather than identifying violations or their attendant sanctions as civil in nature, New York has merely excluded them from the classification of "crime."[10]In a case concerning the Ex Post Facto Clause, where Alaska's sex offender registration statute was neither explicitly denoted as civil nor criminal, the Supreme Court looked to the purposes of the law as articulated in its text, as well as "[o]ther formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes." Smith, 538 U.S. at 93- 94.

         The reasons for applying a functional approach are clear. States have widely varying designations of offenses under their penal codes, and these designations subject defendants to different ranges of punishment. For example, elsewhere in our Circuit, Connecticut declines to designate "violations" as crimes, [11] while Vermont has no violations and instead labels all offenses in its penal code as felonies or misdemeanors. Compare Conn. Gen. Stat. § 53a-24(a), with Vt. Stat. Ann. tit. 13, § 1. While New York violations can result in fifteen- day imprisonment, Connecticut violations result only in fines. Compare N.Y. Penal Law § 10.00[3], with Conn. Gen. Stat. § 53a-27(a). The maximum incarceratory sentence for misdemeanors is one year in New York and Connecticut but two years in Vermont. Compare N.Y. Penal Law § 10.00[4], and Conn. Gen. Stat. § 53a-26(a), with Vt. Stat. Ann. tit. 13, § 1. Such variances counsel against adopting a purely labels-dependent approach to our analysis. If we were to do otherwise, federal jurisdiction over habeas petitions arising from similar or identical conduct and punishment would be controlled by vagaries of nomenclature, not substance.

         Adopting the approach of the Smith Court, we examine New York's penal code and laws regarding Nowakowski's conviction as a whole, giving due weight to the State's legislative judgments. We conclude that New York punishes violations such as Nowakowski's under its criminal, not civil, authority. An action to prosecute a violation is designated a "criminal action" under New York law and may be commenced by filing an information or prosecutor's information, see N.Y. Crim. Proc. Law § 1.20[4], [6], [16], which are instruments that "constitute[] an accusation on behalf of the state as plaintiff, "id. § 1.20[1]. Such actions are governed by the New York Criminal Procedure Law, see id. § 1.10[1](a), which requires the State to prove guilt beyond a reasonable doubt, see id. § 70.20. These are all customary indicia of the State's exercise of criminal jurisdiction.

         Our understanding that Nowakowski's conviction was secured pursuant to New York's criminal authority accords with traditional conceptions of the distinction between criminal and civil jurisdiction:

The distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, seems principally to consist in this: that private wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals; public wrongs, or crimes and misdemeanors, are a breach and violation of the public rights and duties, due to the whole community, considered as community, in its social aggregate capacity.

         2 William Blackstone, Commentaries on the Laws of England, bk. 4, ch. 1, at 5 (1st ed. 1769). Harassment in the second degree is conduct that New York seems to view as a public wrong and wishes to punish in its social aggregate capacity. See N.Y Penal Law, art. 240 (designated "Offenses Against Public Order" and including harassment in the second degree); cf. Smith, 538 U.S. at 94 (observing that codification in the criminal code may constitute some evidence of punitive intent). Thus, the New York statutory scheme evinces an intent to treat a violation as criminally sanctionable conduct, notwithstanding the formal designation of only misdemeanors and felonies as "crimes."

         In the context of federal constitutional protections, a conclusion that the state legislature intended a criminal punishment ordinarily "ends the inquiry." Smith, 538 U.S. at 92. However, the Supreme Court has also developed a set of factors that are "neither exhaustive nor dispositive, but are useful guideposts" for determining whether a statutory penalty is criminal or civil in nature, even where a legislature's intent is to impose civil penalties. Id. at 97 (citations and internal quotation marks omitted).[12] These factors, first announced in Kennedy v. Mendoza-Martinez, supra, are as follows:

Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.

372 U.S. at 168-69 (footnotes omitted). The Supreme Court has instructed that "[a]bsent conclusive evidence of [legislative] intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face." Id. at 169.

         However, here, as in Kennedy, "the objective manifestations of [legislative] purpose indicate conclusively that the provisions in question can only be interpreted as punitive, " and therefore, "a detailed examination along such lines is unnecessary." Id.; see also Smith, 538 U.S. at 92-93. Nonetheless, for the sake of thoroughness and to assure ourselves of the soundness of our ultimate conclusion, we briefly address these factors in the context before us.[13]

         The first three factors easily weigh in favor of finding this violation criminal in nature. As discussed above, a conviction exposes a defendant to an incarceratory sentence of up to fifteen days. Of course, imprisonment is "the paradigmatic affirmative disability or restraint, " Smith, 538 U.S. at 100, and thus incontrovertibly considered punishment. In addition, conviction requires proof of scienter beyond a reasonable doubt-namely, "intent to harass, annoy or alarm another person." N.Y. Penal Law § 240.26; see also N.Y. Crim. Proc. Law § 70.20. The fourth factor similarly weighs in favor of considering the conviction criminal: the statute clearly operates to deter bad conduct, and the possible punishments serve retribution on offenders. The fifth factor is not particularly appropriate to this context-the criminality, or not, of Nowakowski's conduct is established by this statute in its own right.

         The final two factors-the existence of a rational alternative purpose and whether the sanction is excessive in relation to it-do not appear to weigh in favor of finding the sanction civil. As the analysis of factors one, three, and four show, the principal effect of the sanctions here is punitive-imprisonment, monetary fines, or both-and do not appear to have an alternate purpose that contributes to a regulatory or civil interest of the state. For example, the Supreme Court concluded in Smith that sex offender registration served a nonpunitive civil purpose: "public safety, which is advanced by alerting the public to the risk of sex offenders in their community." 538 U.S. at 103 (alteration and internal quotation marks omitted). No analogous civil interest immediately rises to mind on the law before us, but we need not conclusively decide the question in light of the weight of the other factors.

         In summary, we conclude that Nowakowski's conviction is criminal in nature for the purposes of invoking the Sibron presumption.[14] We do so primarily because New York has evinced a legislative intent to treat such convictions as criminal, and such intent is supported by our consideration of the Kennedy factors.


         Having concluded the presumption of continuing collateral consequences should apply, we now turn to whether sufficient collateral consequences to Nowakowski's conviction have been demonstrated. Because Nowakowski's conviction was based on one of the lowest level offenses under state law, we think it is likely that he will suffer fewer collateral consequences than if convicted of a felony or even a misdemeanor. Thus, as his case may end up being on the margins, we think it useful to examine how the presumption will functionally affect our inquiry.

         First, Spencer defined the Supreme Court's application of the principle as being "willing to presume that a wrongful criminal conviction has continuing collateral consequences (or, what is effectively the same, to count collateral consequences that are remote and unlikely to occur)." 523 U.S. at 8. This approach has led the Court "to accept the most generalized and hypothetical of consequences as sufficient to avoid mootness in challenges to conviction." Id. at 10. Spencer used two hypothetical possibilities that a previous decision had deemed sufficient to avoid mootness: "the possibility that the conviction would be used to impeach testimony [a defendant] might give in a future proceeding and the possibility that it would be used to subject him to persistent felony offender prosecution if he should go to trial on any other felony charges in the future." Id. (quoting Evitts v. Lucey, 469 U.S. 387, 391 n.4 (1985)). These two possibilities span the progression of the Sibron presumption. The Court has consistently repeated the idea that a conviction subjects a criminal defendant to the potential for an increased sentence for a subsequent conviction resulting from a not-yet-extant criminal prosecution. See, e.g., Minnesota v. Dickerson, 508 U.S. 366, 371 n.2 (1993)[15]; Pennsylvania v. Mimms, 434 U.S. 106, 108 n.3 (1977); Benton v. Maryland, 395 U.S. 784, 790-91 (1969); Sibron, 392 U.S. at 55-56. In these cases, the Court has also referred to the potential impeachment to which a defendant may be subject in future proceedings. See, e.g., Benton, 395 U.S. at 791; Sibron, 392 U.S. at 55-56; see also Spencer, 523 U.S. at 10; Evitts, 469 U.S. at 391 n.4. Notably, these two consequences both require uncertain future proceedings, the first of which would occur, if at all, by virtue of the defendant's subsequent criminal conduct- i.e., circumstances of his own making.[16] Thus, the first effect of the presumption is to accept a broader category of consequences as sufficient for purposes of avoiding mootness.

         Next, we turn to how the presumption affects the parties' obligations to present and prove the existence of collateral consequences. Although Spencer marked the Supreme Court's most complete discussion of the presumption, the Court never explicitly identified the nature or operation of the presumption.[17] Lower federal courts have nonetheless overwhelmingly treated the Sibron presumption as rebuttable and placed the burden on the state to prove that no collateral consequences will result. See United States v. Quezada-Enriquez, 567 F.3d 1228, 1232 n.2 (10th Cir. 2009); D.S.A. v. Circuit Court Branch 1, 942 F.2d 1143, 1146 n.3 (7th Cir. 1991); Malloy v. Purvis, 681 F.2d 736, 739 (11th Cir. 1982); Felton v. Mazzuca, No. 98 Civ. 4567(RJS), 2012 WL 4462009, ...

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