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CPL 20.40 (2) (c) …cont

A court may thus exercise “protective jurisdiction” if the criminal defendant’s conduct has a “materially harmful impact” upon governmental processes or the welfare of the community. It is not sufficient under the statute that the conduct caused an injury to a particular person; what is required is injury to the county’s governmental processes or community as a whole, and that the defendant intended that effect or acted with knowledge of such effect.

This court is not aware of any cases applying CPL 20.40 (2) (c) to confer jurisdiction over a prosecution charging a criminal defendant with failure to register under SORA. A starting point in understanding this statute as it applies to the present case is the Court of Appeals analysis, and the examples it provided in its opinion.

Some cases have found protective jurisdiction where conduct in one county would further the commission of a potential crime in the county in which a prosecution for such conduct (but not the future crime) was brought. Other cases have found protective jurisdiction where a defendant’s out-of-county conduct would have an effect particularly on governmental processes. CPL 20.40 (2), however, is not limited to these situations, for it extends to any conduct that has a material effect on the community, if such conduct was performed with the requisite intent under the statute.

Considering the policy behind SORA, this court concludes that Bronx County is a county in which this action was properly brought. As stated by the United States Court of Appeals for the Second Circuit, “The legislative history of the [SORA] supports the preamble’s characterization of the twin purposes served by the SORA protecting communities by notifying them of the presence of individuals who may present a danger and enhancing law enforcement authorities’ ability to fight sex crimes.”

The defendant’s alleged failure to register does not have an effect only on a particular individual (such as the assault victim), but instead has an effect on the community as a whole in which he resides namely, Bronx County, because the failure to register impedes notification to the community of sex offenders living in that community. It also impinges on the ability of law enforcement authorities to fight sex crimes, and thereby also has an effect on the governmental processes of Bronx County. The defendant’s alleged failure to register thus meets a prime element of the jurisdictional test enumerated by Fea. Further, his alleged failure to register has an effect that is material as required by CPL 20.10 (4). The lack of registration is material in the community in which an offender resides because efforts to “conduct investigations and quickly apprehend sex offenders are impaired by the lack of information about sex offenders” in the community. Likewise, the failure to register deprives the community of the statutory information. Indeed, lawmakers have found the need for sex offender registration to be so critical that all 50 States have sex offender registration laws in effect. Moreover, the Federal Government has enacted legislation to encourage States to adopt laws requiring convicted sex crimes offenders and offenders against children to register with law enforcement agencies. Finally, because the purpose behind registration to protect a sex offender’s community by requiring the offender’s registration is fairly obvious, this court concludes that it has protective jurisdiction because the facts alleged, if true, would establish that the defendant failed to register, knowing that such failure would be likely to have a material effect in Bronx County.

In sum, the court concludes that the materially harmful impact to Bronx County caused by the defendant’s alleged failure to register in New York County furnishes grounds, pursuant to CPL 20.40 (2) (c), for this court to properly exercise jurisdiction over the prosecution in the instant matter.

Accordingly, the defendant’s motion to dismiss is denied.

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