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Level Three Sex Offender

A New York Criminal Lawyer said that, the defendant in this case is charged with a violation of Correction Law Section 168-t, in that he is alleged to have failed to personally register with the local law enforcement agency as a sexually violent predator, within ninety (90) days after his “initial release or commencement of” probation, as mandated by Corr.L. §§ 168-f(3) and 168-h 1. On January 22, 1992, defendant pleaded guilty to a violation of Penal Law, Sex Abuse (by forcible compulsion) in the First Degree, and was sentenced to six (6) months in jail and five (5) years probation. On July 25, 1995, the New York legislature approved passage of the Sex Offender Registration Act (“the Act”), Section 2 of Chapter 192 of the Laws of 1995, Correction Law Art. The Act became effective on January 21, 1996, almost four years to the day that the defendant completed four of the five years of his probationary term.

A New York Sex Crime Lawyer said that, intended to provide “law enforcement with additional information critical to preventing sexual victimization and to resolving incidents involving sexual abuse and exploitation promptly”, the Act imposed registration requirements on sex offenders and established procedures for the release or notification 2 to the law enforcement community and the public of information pertinent to the identity and location of convicted sex crimes offenders.

The issue in this case is whether defendant covered by the SORA.

Pursuant to the terms of the Act, a sex offender 3 on probation on January 21, 1996, must be identified by the Department of Probation and Correctional Alternatives (“DOP”) and registered 4 with the local law enforcement agency within forty-five (45) days 5 after that date. DOP must also assess the sex offender’s level of risk pursuant to Section 168-l. 6 Corr.L. § 168-g(1). Once the sex crime offender’s risk level is determined, DOP must notify the offender of such determination. The offender must then register with his probation officer within ten (10) days of the notification. Corr.L. § 168-g(2). If classified as a sex offender, the offender must thereafter register with the Division of Criminal Justice Services 7 on each anniversary of his initial registration for a period of ten years. However, an offender deemed a sexually violent predator must not only register on the anniversary of his initial registration date, Corr.L. §§ 168-g(2) and 168-f(2), he must also personally “verify (his registration) quarterly (or every 90 days) for a minimum of ten years”, unless otherwise ordered by the court.

In his motion to dismiss, the defendant argues that under Section 168-f(3), he is not required to adhere to the 90 day registration requirement until the anniversary of or one year after his initial registration. Moreover, he claims that Corr.L. § 168-g(3) imposes the duty to register on his probation officer, not him. Defendant further argues that the registration requirement violates the United States Constitution’s prohibition against ex post facto laws. Finally, defendant contends that he was classified as a Third Level Offender without having had the opportunity to appear and be heard by the “Board of Examiners”. The failure to provide him with a pre-assessment hearing, he argues, violates his due process rights.

While defendant’s claims raise important issues about the scope and reach of the Act’s registration provisions, this court will not address them since a review of the accusatory instrument reveals that it is facially insufficient, a defect that is non-waivable and deprives the court of jurisdiction to proceed further with this criminal action.

To be sufficient, an information, together with any accompanying supporting deposition, must contain an accusatory part which designates the offenses charged, and a factual statement alleging non-hearsay facts of an evidentiary nature. The factual statement must establish each element of the offenses charged, and provide reasonable cause to believe that the defendant committed said crimes. The accusatory part of the accusatory instrument alleges that defendant, “a sexually violent predator, failed to personally verify with the local law enforcement agency his registration every 90 days after the initial release or commencement of probation”. As applied to the defendant, this articulation of the law is incorrect.

The requirement that offenders register 90 days after the date of initial release or commencement of probation applies to offenders who, after the effective date of the Act, are “discharged, paroled or released from any state or local correctional facility, hospital or institution where [they were] confined or committed.” Sex offenders classified as sexually violent predators, such as the defendant, who were already serving a probationary term on the effective date of the Act, must personally verify their registration 90 days after the date that they first registered with their probation officer. Although the accusatory instrument in this case inaccurately describes the event which triggered defendant’s obligation to personally verify his registration as a sexually violent predator, the People correctly allege that the day on which defendant was required to verify was May 28, 1996. 9 However, the fact that the 90th day is properly identified in the accusatory instrument does not render it facially sufficient.

To Be cont….

An information is intended to provide a defendant with actual notice of the sex crimes that are being brought against him as well as the factual allegations that support those charges. Such notice is intended to afford the defendant an opportunity to prepare for trial and prevent a subsequent prosecution for the same offense. The People’s inaccurate recitation of the date or circumstance from which the 90 day period of personal verification must be calculated, does not give the defendant notice about how the People determined that he did not verify within the 90 day period. Indeed, the accusatory instrument does not even allege that the defendant was classified as a sexually violent predator, only that he is “a Level Three Sex Offender”, a designation that is not referenced in the provisions of the Act which define the registration and verification requirements imposed on offenders, but which is mentioned in Corr.L. § 168-l (6)(c). This provision establishes that if there is a high risk that the offender will repeat the offense and pose a threat to the public, the offender must be deemed a sexually violent predator and given a “level three designation”. Nowhere else in the statute is there a reference to a “level three” designation.

The failure to properly apprise the defendant of the circumstance or date from which the People calculated the effective date of verification is not a mere technicality but an essential element of the crime charged. The error is particularly significant since the law imposing such verification requirements was enacted after the defendant commenced his probationary term, and the statute, replete with registration and other deadlines, is not easily interpreted.

The allegation that the defendant was required to verify his registration 90 days after he commenced his probationary term also raises questions about whether he was properly or actually informed about the May 28th date. The People, charged with prosecuting violations of the Act, were themselves unable to accurately identify the date or event from which the 90 day period began to run. In fact, they did not change this inaccurate reference when they later amended the complaint. How then is the defendant to know how the People arrived at the May 28th date as the day on which he was supposed to verify?

There is no allegation in either the accusatory or factual part of the accusatory instrument that the defendant was aware of the 90 day verification requirement and knowingly and intentionally refused to verify.

Section 168-t of the Correction Law does not expressly designate a culpable mental state. It simply states that [a]ny person required to register pursuant to the provisions of this article who fails to register in the manner and within the time periods provided for herein shall be guilty of a class A misdemeanor. However, P.L. § 15.15(2) specifically provides that where a statute defining an offense does not expressly designate a culpable mental state, “a culpable mental state may nevertheless be required for the commission of such offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability.

A close reading of the Act reveals that the legislature defined a crime of mental culpability when it imposed criminal penalties on offenders, such as the defendant, who are alleged to have failed to register or verify on a prescribed date. Section 168-g(2), in relevant part, states that “any sex offender] who fails or refuses to register shall be subject to the same penalties which would be imposed upon a sex offender who fails or refuses to so comply with the provisions of this article on or after [January 21, 1996]”. The refusal language invoked in this provision presupposes volitional conduct.

The failure of the People to allege the essential elements of knowledge and intent renders the accusatory instrument facially insufficient. Significantly, the accusatory instrument also does not allege the date on which the defendant was convicted or whether he was sentenced as a sex offender before or after January 21st. This omission is important because, as has been noted above, different procedural requirements are imposed on offenders released after that date. The failure to allege this information also raises questions about whether P.O. was trained in and familiar with the interpretation of DOP records.

The information does not specify what DOP records were inspected by P.O. or whether they constituted “business records” within the meaning of C.P.L.R. 4518. The absence of any allegations establishing a non-hearsay source for P.O. conclusory statement that the defendant is a convicted sex offender who did not verify on May 28th renders the accusatory instrument facially insufficient, especially since there is no allegation that would establish how P.O. came to conclude that the defendant had not registered on May 28, 1996.

This situation is analogous to the line of cases that preceded the passage of Administrative Code of the City of New York § 20-474.3(a), which created a presumption that one is not licensed as general vendor if he or she fails to exhibit a general vendor’s license upon demand. In those cases, the People relied on police officers’ inspection of the Department of Consumer Affairs’ (“DCA”) records to support allegations that the defendants lacked general vendors’ licenses in violation of Administrative Code § 20-453. The courts ruled that the information’s were jurisdictionally defective inasmuch as they contained hearsay evidence, the reliability of which had not been established by allegations that the deponents had firsthand knowledge of the recordkeeping practices of the DCA or had obtained certified copies of records maintained by the agency. Drug possession was not a factor.

Similar rulings have followed challenges to the sufficiency of information’s alleging violations of Vehicle and Traffic Law § 511, where the People relied on the Department of Motor Vehicles’ (“DMV”) Abstract of Operating Record to support the deponent-police officers’ allegations that defendants operated their vehicles with suspended licenses. In those instances, it was held that the People were required to submit an affidavit from a DMV employee responsible for the issuance of the suspensions setting forth the procedure for the issuance and mailing of the notices of suspension.

Insofar as the accusatory instrument in this case does not allege the essential elements of the offense, namely, that the defendant, a sexually violent predator, on probation on January 21, 1996, with knowledge of his obligation to personally verify his registration with the law enforcement agency on May 28, 1996, intentionally failed to do so, the accusatory instrument is facially insufficient.

Accordingly, the court held that, defendant’s motion to dismiss is granted for facial insufficiency.

Those who are indicted of a sex crime should register under SORA, if there is a violation of this rule asked for the help of a New York Sex Crime Attorney and New York Criminal Attorney at Stephen Bilkis and Associates.

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