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Penal Law § 130.60[2]….cont

It is to be noted that the conduct underlying petitioner’s Wyoming conviction constitutes, inter alia, sexual abuse in the second degree under Penal Law § 130.60[2], that is sexual contact with a child less than 14] and sexual abuse in the first degree under § 130.65[3], that is, sexual contact with a child less than 11], both of which constitute registrable offenses under Correction Law § 168–a[2][a][i]; [3][a][i] ).

It is undisputed that petitioner was “on parole or probation” when SORA went into effect. Petitioner contends, however, that the retroactivity provisions contained in Correction Law § 168–g are limited to individuals who were on probation or parole in New York when SORA went into effect and, inasmuch as he was on criminal probation in Wyoming on that date and his probation term expired before he moved to New York, he is not subject to the statute’s requirements. The court rejects petitioner’s contention.

Pursuant to Correction Law § 168–g(1), the division of parole or department of probation and correctional alternatives in accordance with risk factors pursuant to section [168– l ] shall determine the duration of registration and notification for every sex offender who on the effective date of SORA is then on parole or probation for an offense provided for in section 168–a(2) or (3).

Section 168–g(2) further provides that every sex crimes offender who on the effective date of SORA is then on parole or probation for an offense provided for in section 168–a(2) or (3) shall within [10] calendar days of such determination register with his or her parole or probation officer. On each anniversary of the sex offender’s initial registration date thereafter, the provisions of section [168–f] shall apply.

Any sex offender who fails or refuses to so comply shall be subject to the same penalties as otherwise provided for in SORA that would be imposed upon a sex offender who fails or refuses to so comply with the provisions of SORA on or after such effective date.
The court finds that there is no question that the provisions in Correction Law § 168–g mandating registration for New York probationers on SORA’s effective date did not apply to petitioner, who was still on probation in Wyoming at that time.

Nevertheless, it rejects petitioner’s contention that the retroactivity provisions set forth in that section are limited to those sex offenders who were on parole or probation in New York at the time of SORA’s implementation.

It is to be noted that neither the language of the statute nor the legislative history supports petitioner’s restrictive interpretation. The language of the statute does not differentiate between in-state and out-of-state probationers. The court discerns no such intent in the legislative history. Rather, SORA’s legislative history evinces intent to include all individuals then on parole or probation within its ambit. For example, a 11 July 1995 letter from SORA’s Senate Sponsor to the Governor states that the proposed statute applies to those offenders adjudicated on or after the effective date and to all persons still serving a sentence of incarceration, probation or parole as of the date of enactment.

To Be Cont…

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