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Correction Law § 168-a (2)(a)(i

In 2004, petitioner-appellant pleaded guilty to a federal possession of child pornography offense. The Court is tasked to determine whether the Board of Examiners of Sex Offenders erred when it concluded that petitioner’s conviction in a foreign jurisdiction required him to register under New York’s Sex Offender Registration Act (SORA).

A New York Criminal attorney said that federal agents executed a search warrant at petitioner’s home, seizing his computer. Examination of the computer revealed that petitioner had knowingly purchased a subscription to an Internet site that was tailored to appeal to individuals with a sexual interest in children. Petitioner acknowledged to federal authorities that, over a period of four or five months, he downloaded and viewed numerous images depicting children ages 7 to 17 years engaged in sexual acts.

In November 2004, petitioner pleaded guilty in United States District Court for the Western District of New York to a possession of child pornography offense and was sentenced to five years probation with 24 days of electronic monitoring.

At the state level, the Board of Examiners of Sex Offenders, proceeding in accordance with Correction Law § 168-k, concluded that petitioner was required to register under SORA. The Board found that petitioner had been convicted of a sex crimes offense as defined in Correction Law § 168-a (2)(d), which addresses when a person convicted in a foreign jurisdiction must register in New York. After the Board rejected his request for reconsideration, petitioner commenced this CPLR article 78 proceeding challenging the registration determination. Although criminal petitioner acknowledged that SORA had been amended in 2002 to explicitly cover certain federal convictions in Correction Law § 168-a (2)(d), he argued that the 2002 amendments did not apply to him. Petitioner claimed that he fell within a “loophole” created in the legislation’s complex effective date provision because he committed his offense before the effective date of the new amendments.

In response, the Board contended that, independent of the 2002 amendments, petitioner was required to register because his federal offense contained the same “essential elements” as the New York crime of possession of a sexual performance by a child, a registrable offense. The Board further asserted that the 2002 amendments specifically listing petitioner’s federal offense embraced petitioner because he was convicted in 2004—two years after the legislation was enacted.

Since the inception of SORA in 1995, a person convicted of a felony in another jurisdiction, including conviction of a federal crime, has been subject to registration in New York if the foreign offense “includes all of the essential elements” of one of the New York offenses listed in SORA. In 1999, the Legislature added another basis for registration arising from a foreign conviction— an offender must register in New York if that person committed a criminal felony subject to registration in the foreign jurisdiction. SORA was again amended in 2002 to clarify that particular federal offenses are subject to New York’s registration requirement and the amendments removed the requirement that the foreign offense be a felony. In addition, the foreign conviction provision was reorganized into three subsections.

The Board argues that petitioner’s federal possession of child pornography offense is comparable to the New York criminal offense of possessing a sexual performance by a child, a class E felony subject to registration under Correction Law § 168-a (2)(a)(i). Petitioner’s federal felony offense, codified at 18 USC § 2252A (a)(5)(B), makes it unlawful for any person to “knowingly possess[] any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer.”

The term “child pornography” includes any “computer or computer-generated image or picture” involving “the use of a minor engaging in sexually explicit conduct” and the term “`minor’ means any person under the age of eighteen years”.

Under Penal Law § 263.16, “[a] person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age.” The term “performance” includes any motion picture or photograph. Petitioner does not dispute that, like the federal crime, the New York offense criminalizes possession of computer images of children engaged in sexually explicit activity—the conduct underlying his federal conviction.

The Criminal Court is not persuaded that the Legislature intended that the SORA “essential elements” inquiry involve the same strict equivalency approach used in the criminal enhanced sentencing context. The enhanced sentencing standard was developed by this Court more than 50 years ago in cases interpreting the second felony offender provision currently codified at Penal Law § 70.06(1)(b)(i)—a provision that long predated the second violent felony offender statute and which has never included the “essential elements” language found in SORA. Obviously, the strict equivalency requirement does not turn on the presence of “essential elements” language. As such, the Legislature’s decision to use that phrase in Correction Law § 168-a (2)(d) does not suggest an intent to incorporate the strict enhanced sentencing test in SORA proceedings.

The Court is similarly not persuaded that language in Correction Law § 168-a (2)(d)(iii) compels a strict interpretation of the “essential elements” standard. Subsection (iii)—added in 2002—enumerates specific federal offenses, including petitioner’s child pornography offense, as registrable offenses, “provided that the elements of such crime of conviction are substantially the same as those which are a part of such offense” as of the effective date of the legislation. Petitioner suggests that, by using the “substantially the same” language in subsection (iii), the Legislature was signaling that the “essential elements” language already included in subsection (i) must be strictly interpreted. But this linguistic distinction is explained by the fact that the “substantially the same” language relates to an entirely different inquiry than the “essential elements” test. Under subsection (i) the Board must compare the foreign offense to the analogous New York offense while subsection (iii) requires the Board to review the federal offense to make certain that it is “substantially the same” in content as it was at the time it was listed in SORA in 2002.

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.

If you have encountered a person who commits a sexually-related case such as child pornography, we have our New York Child Pornography attorneys who will give you advice on what steps to take to prosecute the assailant. For other criminal cases, our New York Criminal lawyers here in Stephen Bilkis and Associates are ready to render their services to you in case of need. Call us now and be counseled by our reliable and diligent lawyers.

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