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Level Three Sex Offender…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.

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