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Correction Law § 168-a (2)(a)(i…cont

Considering its context, the Criminal Court concludes that the “essential elements” provision in SORA requires registration whenever an individual is convicted of criminal conduct in a foreign jurisdiction that, if committed in New York, would have amounted to a registrable New York offense. This necessarily requires that the Board compare the elements of the foreign offense with the analogous New York offense to identify points of overlap. When the Board finds that the two offenses cover the same conduct, the analysis need proceed no further for it will be evident that the foreign conviction is the equivalent of the registrable New York offense for SORA purposes. In circumstances where the offenses overlap but the foreign offense also criminalizes conduct not covered under the New York offense, the Board must review the conduct underlying the foreign conviction to determine if that conduct is, in fact, within the scope of the New York offense. If it is, the foreign conviction is a registrable offense under SORA’s essential elements test.

In this case, comparison of the elements reveals that there is significant overlap between the conduct criminal in the analogous New York offense and the activity covered by the federal child pornography offense. However, because the federal offense covers some activity—possession of child pornography involving children aged 16 and 17—not encompassed in the New York offense, review of the conduct underlying petitioner’s federal conviction is necessary. Here, it is undisputed that petitioner possessed pornographic images of children under age 16 and therefore engaged in conduct that was criminal under both the federal and comparable New York offenses. As such, the Board did not err in determining that, by virtue of his federal child pornography conviction, petitioner was required to register under the “essential elements” provision in Correction Law § 168-a (2)(d)(i).

This result is consistent with statements in the legislative history of the 2002 SORA amendments relating to the inclusion of the specified federal offenses. The Governor’s Program Bill Memorandum and the Senate and Assembly sponsors’ memoranda indicate that the intent in listing the federal child pornography offense was to “clarify” that the offense was subject to registration, which was necessary because some federal offenders had contested the equivalency of the federal and New York offenses. By characterizing the new legislation as a “clarification,” rather than as a change in the law, the Legislature and the Governor indicated that the child pornography offense was already subject to registration under the existing “essential elements” provision. Hence, in their view, the victim age distinctions between the federal and state offenses did not preclude registration under that standard.

Because the Board did not err in requiring petitioner to register under Correction Law § 168-a (2)(d)(i), we need not address petitioner’s claim that, notwithstanding his 2004 conviction of a listed federal offense, he can avoid registration under subsection (iii) because of the effective date provision in the 2002 legislation.

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