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Correction Law § 168-a (2)(d)

Ten years ago, the Legislature enacted the Sex Offender Registration Act (SORA), which required certain sex offenders to register with the Division of Criminal Justice Services within 10 calendar days after discharge from incarceration, parole or other release. The legislation created procedures to weigh the threat posed by the offender’s release and classifications geared to the offender’s risk level. SORA contemplates three levels of risk, from level one to level three, with reporting requirements increasing for each level. A five-member Board of Examiners of Sex Offenders is charged with the responsibility for developing risk assessment guidelines and recommending to a sentencing court the risk level involved upon the release of an offender.

A New York Sex Crime attorney said that defendant was convicted in 2000 by a general court-martial under a generic provision in the Uniform Code of Military Justice prohibiting, among other things, “all conduct of a nature to bring discredit upon the armed forces”. Within the general statutory provision, defendant seems to have been convicted of the specific regulatory offense of “indecent assault.” The Navy apparently sentenced defendant to a bad conduct discharge and reduction in pay grade, but no fine or term of imprisonment.

Because the record in this case is incomplete and sometimes inconsistent, the Court was certain as to the basis of defendant’s conviction. One document before the court, apparently from the regional commander, indicates that defendant’s conviction was for “indecent assault” under the general provision in 10 USC § 934. The crime has also been described as a lesser-included offense under the military crime of rape. Contrastingly, a separate postconviction report from the military prosecutor, closer in time to the trial, suggests that defendant was convicted of ordinary assault.

The Court has not been furnished with an authoritative description of the elements of “indecent assault.” A single page in the record, neither dated, titled, nor authenticated, purports to list the elements, but does not indicate whether those elements are legally prerequisite to the offense. Nevertheless, for purposes of this decision, we will assume that defendant violated 10 USC § 934, that his crime was indecent assault and that the elements of indecent assault are as described in a case law.

The Appellate Division held that the military crime of indecent assault satisfies the requirements in Correction Law § 168-a (2)(d) (ii) (mandating registration for those convicted of “a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred”).

Even though military law does not classify offenses as felonies or misdemeanors, the Court reasoned that indecent assault is a federal felony and that defendant was required to register as a sex offender with naval authorities.

The Court granted defendant leave to appeal and reversed.

To Be cont…

Correction Law § 168-a (2)(d) specifies particular federal crimes that require registration; undisputedly, indecent assault is not among them. The section also mandates that the offender register if the crime of conviction in the other jurisdiction “includes all of the essential elements of any such crime provided for” in the statutory sections referring to convictions obtained in New York.

The People have conceded that they are not relying on that subsection, but solely on section 168-a (2)(d)(ii), which provides that an offender must register when convicted of “a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred”. There are two elements to this subsection: first, the underlying offense must be a felony; second, the offender must be required to register as a sex offender in the other jurisdiction as a result of that conviction.

As to the first element, the People argue that indecent assault can result in a sentence of up to five years’ imprisonment, and is therefore equivalent to a federal felony. Assuming that indecent assault qualifies as a felony within the meaning of our statute, County Court’s determination fails because the second element of section 168-a (2)(d)(ii) requires that the conviction result in the offender’s obligation to register in the “other jurisdiction,”

The People argue that Secretary of the Navy Instruction 5800.14 obligates defendant to register with the Navy. It does not. This “Instruction” is a notification order directed to “All Ships and Stations”; by its own terms, it places responsibility to provide notification not on the offender but on the Assistant Secretary of the Navy, the Navy Personnel Command, the Commandant of the Marine Corps, the “Convening Authority or Convening Authority’s Designee” for each court-martial, the Naval Criminal Investigative Service and the Judge Advocate General of the Navy.

The People have presented no evidence of any kind suggesting that naval sex offenders must register with the Navy or have any ongoing obligation to keep the Navy informed of their whereabouts once they leave the service. Furthermore, the People have presented no evidence that the Navy or Department of Defense maintains any registry or equivalent database; if there is no registry, there can be no registration and no registrants. Because the People have not shown that defendant ever had any obligation to register with the other jurisdiction, they have not met the second statutory requirement for registration in New York.

On the state of this record, we are unprepared to say whether, in a new proceeding, the People may be able to sustain a declaration that defendant must register in New York. Unless amended, section 168-a (2)(d)(ii) might not apply to any military convictions and we agree with our concurring colleague’s suggestion that the Legislature examine the issue. No drug possession was involved.

The Court notes, however, that section 168-a (2)(d)(i) remains available if the People can prove the crime of conviction in the other jurisdiction includes all of the essential elements provided for in the New York statutes described in that subsection.

The order of the Appellate Division should be reversed, without costs, and defendant’s adjudication as a sex offender annulled.

Here in Stephen Bilkis and Associates, we make it a point that we serve and help our clients prevail in a case within the means allowed by law. We have New York Criminal lawyers to counsel you with your criminal cases and represent you in court proceedings. We also have New York Sex Crimes attorneys who will be assigned in protecting the victims of sex-related offenses against the assailants. Call us now.

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