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….
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.