New York Offender Registration Act (SORA)

On 12 May 1999, BM pleaded guilty in the United States District Court for the Southern District of New York to an indictment charging a violation of 18 USC § 2252 (a) (2), a federal class C felony, carrying a potential punishment of more than one-year imprisonment. The indictment charged that BM attempted to purchase videotapes depicting child pornography. The underlying facts indicate that BM, using a computer, ordered tapes which depicted sex acts involving children ages 5, 6 and 14 years old.

Based upon such conviction, the New York State Board of Examiners of Sex Offenders, acting pursuant to the New York Offender Registration Act (SORA), Correction Law article 6-C, determined that BM was required to as a sex crimes offender, and so notified him on 7 December 2000. BM has challenged the applicability of SORA to him on the ground that the federal conviction does not include all of the essential elements of the applicable designated felony as set forth in SORA.

SORA requires a person who has been convicted of certain criminal offenses, referred to in SORA as “sexual offenses,” to register as a sex offender in the State of New York. A “sexual abuse offense” is defined by express reference to a list of New York crimes if the conviction was in New York. Under SORA, crimes committed in other jurisdictions include a conviction under federal law in a federal court in New York. There are two alternate criteria established to determine whether such crime is a “sexual offense” under SORA which requires SORA registration: “whether the conviction in the other jurisdiction was a conviction of an offense which includes all of the essential elements of any such felony provided for in paragraph (a) of this subdivision Correction Law § 168-a [2] [b] -paragraph (a) lists the New York offenses requiring registration, or whether the other conviction was a conviction of a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred.”

The People here seek to require BM to register pursuant to the First Criterion. BM objects on the ground that the federal conviction does not include all the elements of the applicable designated felony as set forth in the New York State Correction Law.

BM and the People agree that the relevant New York State provision is Penal Law § 263.16, possessing a sexual performance by a child, a class E felony. Penal Law § 263.16 provides that: “a person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age.”

The federal crime for which BM was convicted provides that any person who knowingly receives or distributes any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer shall be punished as provided in subsection (b) of this statute. “Child pornography” as defined in this statute requires the person depicted to have been a “minor,” which is defined as any person under the age of 18 years.

BM argues that the differences are that the federal statute criminal possession of images of children under 18 (as distinct from the New York law which criminalizes possession of images of children under 16) and that the federal law requires that the offense be committed by the use of the mails or other shipment or transport in interstate commerce, including by computer (as distinct from the New York law which contains no such requirement).

The court finds BM’s second objection frivolous. The requirement for an instrumentality of interstate commerce in the federal law provides the jurisdictional basis for federal action and legislation. The implied correlative in New York law is that for a conviction under Penal Law § 263.16. The possession would need to have been in New York. Any jury instruction charging a violation of Penal Law § 263.16 would have to include as an element of a crime charging possession, that the crime was committed in the county in which the possession occurred. Yet, to claim that the absence of such jurisdictional requirement where the crime was not committed in New York means that such crime did not have the same essential elements of a New York Crime, cannot be serious if the SORA provisions, which consider how crimes in other jurisdictions are to be considered in a SORA registration, are to have any meaning.

In the case at bar, the claim that the federal jurisdictional predicate excludes BM’s federal crime from inclusion under SORA is even weaker. First, in fact, BM was in New York County when he attempted to acquire the videotapes, and second, the jurisdictional requirement is for the federal crime, in addition to all other elements, and not in substitution therefor. While an essential element necessary for a conviction in New York missing in the federal prosecution would bar a conviction in such proceeding from consideration under SORA, an additional element should not. In the former case, there would be no basis to believe an analogous crime had been committed. In the latter case, there would only be a possibility that some persons who might have been convicted in New York would not be convicted under the federal statute which requires additional elements to be proven for conviction. The court finds that “essential elements” must be considered by applying appropriate standards of statutory construction.

New York State courts have almost uniformly held that the laws requiring registration of sex crimes offenders are remedial and therefore constitutional. In most cases, the courts have found SORA does not violate double jeopardy rights or the Ex Post Facto Clause. Requirements for notification and registration are civil and remedial and do not constitute punishment. The purpose of which is to adopt a remedial measure to ameliorate the danger to the public caused by the release of sex offenders and does not violate petitioner’s double jeopardy rights. Since SORA is unquestionably a remedial or civil statute, the court must apply appropriate construction to the “essential elements” test.

Remedial statutes are those which are made to supply some defect or abridge some superfluity in the former law, or which supply a remedy where none previously existed. They are also referred to as statutes designed to correct imperfections in prior law by generally giving relief to the aggrieved party. Generally speaking, remedial statutes meet with judicial approval and are to be liberally construed to spread their beneficial results as widely as possible. A liberal construction of such statutes is one which is in the interest of those whose rights are to be protected, and if a case is within the beneficial intention of a remedial act, it is deemed within the statute, though not actually within the letter of the law.

While a remedial statute is construed with greater liberality than is allowed with reference to a penal statute, it is nevertheless to receive a reasonable interpretation with a view of accomplishing the purpose intended as ruled in Matter of Anderlohr v City of New York. The court may take a liberal view towards the application of the registration legislation so as to spread its beneficial results as widely as possible and to ensure its application to as many convicted persons as possible as held in Matter of Mlodozeniec v Worthington Corp.

The court concludes that as a remedial rather than a penal statute, the essential elements test under SORA should be liberally construed to accomplish the express intent of the New York Legislature. The Nadel Court in applying the “strict application,” held that the elements of the out-of-state conviction had to be “virtually identical” and that it could not consider the factual allegations in the indictment or the evidence at trial when considering whether the New York crime contained comparable “essential elements.” The New York courts, however, have found that even where the essential demands test is applied in a criminal statute context, such a rule is not hard and fast. To an extent, there is no absolute limit to inquiry that may be made into the underlying facts, where an essential elements test is imposed under a penal statute, a fortiori, there is no absolute limit to such inquiry in the civil context. As a matter of fact, following the legislative intent, there should be no restriction at all, provided that such inquiry is carried out in an appropriate manner in accordance with the law, and as to accord the putative registrant proper procedural due process.

It is therefore the holding of this court that it may take into account reliable, admissible evidence to determine whether the defendant’s conviction on the federal sex crime contains the “essential elements” of New York crime and that in this civil context, “essential elements” means no more than that behavior which was in fact found to be criminal in the non- New York case would have been criminal under the relevant New York statute.

After defendant’s plea and before imposition of his sentence, the court has reviewed documents from BM’s case from the United States District Court for the Southern District of New York. These documents included copies of the indictment and authenticated copies of the presentence investigation report. It also contained several types of documents, including an analysis of the crime committed by the defendant and the sentencing options and recommendations of the Government, as well as copies of the e-mail communications between the defendant and the undercover postal agent who posed as a seller of pornographic videotapes and communicated with the defendant regarding the defendant’s purchase of these videotapes. The e-mails between the defendant and the agent contain information regarding the age of the minors in tapes the defendant attempted to purchase. Specifically, the tapes ordered by defendant were to contain pornographic depictions of 5 or 6 year olds, 11 year olds, or 14 year olds.

These documents were accepted by the court under the common-law hearsay exception for public records under CPLR 4520. The court may receive an authenticated document and take judicial notice of the authenticity of the document with a proper official seal or signature affixed by an officer of the Federal Government as ruled in the case of Briedis v Village of Tuxedo Park. BM offered no evidence to the contrary or otherwise challenged the presentence investigation report.

Therefore, based upon the available, reliable and admissible facts of defendant’s federal conviction, the court finds that the defendant was convicted of a felony which contains the essential elements of a New York felony, and he must register as a sex offender under SORA.

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