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Respondent was advised that the court would make a final determination

In June 1998, respondent pleaded guilty in the Southern District of New York to an information charging one count of computer transmission of material involving sexual exploitation of minors. That charge arose from allegations that respondent had transmitted via the Internet three photographs of juveniles engaged in sex abuse explicit conduct. Respondent was sentenced to home detention for a period of 15 months and five years’ probation, and was directed to undergo mental health treatment during the entire term of his probation.
A Nassau County Criminal lawyer said that the Board informed respondent that since he had been convicted of a sex crime in another jurisdiction and resides in New York State, he may be required to register as a sex offender under the provisions of the Sex Offender Registration Act. The letter invited respondent to submit any materials that he wished the Board to consider in making their determination.

In a letter to the Board, respondent’s counsel argued that respondent should not be required to register as a sex offender because the Federal crime of which respondent was convicted does not contain all of the essential elements of any New York State sex offense. Specifically, respondent contended that whereas the Federal crime requires that a defendant transmit sexually explicit images of an individual under the age of 18, the analogous State statutes criminalizing such prostitution conduct apply only where the images are of children less than 16 years old. Thus, respondent argued, under the strict statutory construction rules developed by the Court of Appeals for using out-of-State convictions to adjudicate defendants as prior felony offenders, respondent’s Federal conviction does not qualify as a sex offense under SORA’s definition of that term.

In August 2000, the Board informed respondent and the clerk of this court that it had determined that respondent would be required to register because the Federal statute to which respondent pleaded guilty contains the essential elements of two New York crimes: promoting a sexual abuse by a child and promoting an obscene sexual performance by a child. The Board’s submission to this court included a case summary which indicated that the Board’s conclusion that respondent must register was based upon a review of the respondent’s file, including a presentence investigation conducted by the Southern District’s Probation Office. The case summary states that the three photographs respondent had transmitted over the Internet contained images of children under the age of 12. Thus, the Board concluded, “the facts of case clearly entail the transmission of material depicting children, under the age of sixteen, engaged in sexual behavior.” The Board recommended to the court that respondent be adjudicated a level one sex offender.

This court’s correspondence unit subsequently informed respondent that the Board had recommended that he register as a level one sex offender. Respondent was advised that the court would make a final determination of the risk level at a hearing at which he had a right to be present and have counsel. At the request of respondent, the hearing was adjourned for the parties to submit written memoranda on two issues: (a) whether this court has the power to review the Board’s determination that respondent must register as a sex offender, and, if so, (b) whether the Board erred in making its determination. After consideration of the parties’ submissions, this court concludes that it has the power to review the Board’s determination that respondent’s Federal conviction requires him to register as a sex offender in New York. Upon such review, the court finds that the Board erred in concluding that respondent must register, and therefore no factual hearing regarding respondent’s specific risk level is necessary.

SORA established a notification and registration scheme for individuals convicted of certain enumerated sex crimes. Under that scheme, a convicted sex offender is classified into one of three levels based upon the risk that the offender will commit a repeat offense. If the risk of repeat offense is low, the sex offender is designated as a level one offender. For these individuals, SORA requires notification to law enforcement agencies located in the offender’s jurisdiction and annual registration by the offender for a period of 10 years. Level two classification, which is given to offenders who present a moderate risk of reoffense, also requires law enforcement notification and annual registration for 10 years. In addition, SORA allows law enforcement agencies to notify any entity with “vulnerable populations” that a convicted level two sex offender resides in the community. Those entities, in turn, may further disseminate that information at their discretion. The highest designation, level three, is given to sex offenders whose risk of a repeat offense is high. Level three offenders must register in person every 90 days for a minimum of 10 years, and potentially for life. In addition to all of the notification provisions applicable to level two offenders, level three offenders are included in a directory of sex offenders which is made available to the public. Finally, for all three classification levels, SORA requires that information about the offender be available to any member of the public who calls a designated “900” telephone number.

Correction Law § 168-a established the criteria used to determine whether sex offenders convicted in other jurisdictions must register in New York. Under that section, an individual is required to register as a sex offender in New York if either: (a) he is convicted of an offense in any other jurisdiction which includes “all of the essential elements” of certain enumerated New York felonies for which a prison sentence of more than one year or a sentence of death was authorized in the foreign jurisdiction; or (b) he is convicted of a felony in any other jurisdiction for which a prison sentence of more than one year or a sentence of death was authorized in the foreign jurisdiction, and for which the offender is required to register as a sex offender in the foreign jurisdiction.

At the hearing, the offender must be given the opportunity to appear and be heard. Further, the offender must be provided with discovery relevant to the issues at the hearing. The People bear the burden of proving facts supporting the duration of registration and level of notification sought by clear and convincing evidence. At the conclusion of the hearing, the court must render an order setting forth its risk level determination, and the findings of fact and conclusions of law on which the determination is based. Finally, either party may appeal as of right from the court’s order pursuant to provisions of the CPLR. (Correction Law § 168-k [2].)

With this statutory backdrop in place, the first issue the court must address is whether it has the authority to review the Board’s legal conclusion that respondent must register as a sex offender. Respondent argues that the above-quoted statutory language makes clear that the Board’s role is merely to recommend to the court that an individual with a foreign conviction register as a sex offender and to further recommend an appropriate risk level. Thus, respondent contends, this court is not bound by the Board’s determination that respondent’s foreign conviction requires him to register in New York. This court agrees with respondent. There is nothing in the statutory language which unequivocally states that the Board has the exclusive authority to decide the threshold issue of whether respondent is required to register. Likewise, nothing in the statute prohibits this court from reviewing the Board’s decision on this issue.

To the contrary, the statute specifically states, in three separate places, that the Board’s determination concerning the level of notification and duration of registration is a recommendation to the court. Moreover, the statute explicitly grants to the court the ultimate power to decide the offender’s level of notification and duration of registration. This court concludes that the only reasonable interpretation of the statute is that the power of the court to determine how long and at what level the offender has to register includes the power to determine whether registration is required at all. This conclusion is further supported by that section of the statute which requires the court to “render an order setting forth its risk level determination and the findings of fact and conclusions of law on which the determination is based.” Certainly, any legal conclusions concerning the level of notification and duration of registration must encompass the essential legal issue of whether the offender has to register at all.

The Court has found no cases from either the Court of Appeals or the Appellate Divisions which would preclude the court from reviewing the Board’s registration decision. Indeed, no appellate court has addressed the precise issue presented here. The court is aware, however, of a decision to the contrary issued by a court of concurrent jurisdiction.
The conclusion reached here is entirely consistent not only with the specific section of SORA governing out-of-State offenders, but also with other subdivisions of the statute which give the court the authority to determine if in-State offenders are subject to SORA’s provisions. For example, as to those defendants convicted in New York of any of the enumerated offenses, SORA provides that “[u]pon conviction * * * the court shall certify that the person is a sex offender.” Similarly, for defendants about to be discharged from jail or paroled, the statute states that “[a] determination that an offender is a sex offender shall be made by the sentencing court.” These determinations for New York offenders are quite simple, the court need only compare the crime of which defendant was convicted with the list of sex offenses laid out in the statute. On the other hand, the test to determine if an out-of-State conviction qualifies as a sex offense under SORA is much more complicated and involves a painstaking comparison of the New York and foreign statutes. To conclude that this court does not have the power to review the Board’s decision would mean that the Legislature provided for the courts to make the simplest of SORA determinations, yet entrusted the much more complicated legal conclusions to an administrative agency free from any judicial review of its decisions. The Legislature could not have intended this anomaly to occur.

Registration in New York is also required for those sex offenders convicted in other jurisdictions of any offense which includes “all of the essential elements” of certain enumerated New York felony sex offenses. The statute does not define “essential elements” nor does it provide any further guidance on how to determine if an out-of-State conviction qualifies for New York registration. Respondent argues that that term should be strictly construed and urges this court to apply the “essential elements” test developed by the Court of Appeals for using out-of-State convictions to adjudicate defendants as prior felony offenders. The Attorney General argues that applying that test would frustrate the intent of the SORA statute.

The court is constrained to agree with respondent and conclude that the “essential elements” test in the predicate felony context must be used to determine whether an out-of-State conviction requires registration as a sex offender in New York. The court reaches this conclusion because the language used in Correction Law § 168-a (2) (b), the section of SORA at issue here, is identical to the language of the predicate felony statutes.

The court agrees with respondent that the elements of the Federal and New York statutes are not sufficiently alike to require respondent to register in New York as a sex offender. It is apparent that it is possible to violate the Federal statute with depictions of an individual less than 18 years of age without violating either of the analogous New York statutes. Since the New York and Federal statutes have different elements with regard to the age of the victim, this court concludes that the Federal statute fails the “essential elements” test contained in SORA. Accordingly, respondent cannot be required to register in New York as a sex offender.

Children should be free from abuse and harm physically and sexually. Here in Stephen Bilkis and Associates, our Nassau County Sex Crime attorney will help you prosecute Sexual abuse offenders before the Courts of Justice. For other inquiries, don’t hesitate to contact our Nassau County Criminal lawyers.

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