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Convicted sex offender is classified into one of three levels


A man pleaded guilty to information charging him to one count of computer transmission of material involving sexual exploitation of minors. The aforementioned charge arose from allegations that the man had transmitted via the internet three photographs of teenagers engaged in sexually explicit conduct. The man was sentenced to home detention for a period of fifteen months and five years’ probation from the child pornography offense, and was directed to undergo mental health treatment during the entire term of his probation
The board of examiners of sex offenders informed the man that since he had been convicted of a sex offense in another state yet he resides in New York State, he may be required to register as a sex offender under the provisions of the sex offender registration act. The letter invited the man to submit any materials that he wished the board to consider in making their determination.

In a letter to the board, the man’s criminal attorney argued that the man should not be required to register as a sex offender because the federal crime of which the man was convicted does not contain all of the essential elements from the state’s sex offense. Specifically, the man contended that whereas the federal crime requires that an offender transmit sexually explicit images of an individual under the age of eighteen. Then, he further argued, under the strict legal construction rules developed by the court of appeals for using out-of-state convictions to adjudicate the offenders as prior felony offenders, the man’s federal conviction does not qualify as a sex offense under act’s definition of term.

After two months, the board informed the man and the clerk of the court that it had determined that the man would be required to register because the federal law to which the man pleaded guilty contains the essential elements of two crimes which includes promoting a sexual performance by a child and promoting an obscene sexual performance by a child.

The board’s submission to the court included a case summary which indicated that the board’s conclusion that the man must register was based upon a review of the man’s file, including a presentence investigation conducted by the probation office. The case summary states that the three photographs the man had transmitted over the internet contained images of children under the age of twelve.

As a result, the board concluded, the facts of the man’s case clearly entail the transmission of material depicting children, under the age of sixteen, engaged in sexual behavior. The board also recommended to the court that the man be adjudicated a level one sex offender.

After sometime, the sex offender registration act became effective. It established a notification and registration scheme for individuals convicted of certain enumerated sex offenses. Under that scheme, a convicted sex offender is classified into one of three levels based upon the risk that the offender will commit a repeat offense. If the risk of repeat offense is low, the sex offender is designated as a level one offender.

At the hearing, sources revealed that the offender must be given the opportunity to appear and be heard. Further, the offender must be provided with discovery relevant to the issues at the hearing.

The complainant bear the burden of proving the facts supporting the duration of registration and level of notification sought by clear and convincing evidence. At the conclusion of the hearing, the court must render an order setting forth its risk level determination, and the findings of fact and conclusions of law on which the determination is based. In conclusion, either party may appeal as of right from the court’s order.

Notably, the attorney, who represents the board in the proceeding, appears to believe that the board’s determination that the man is required to register is subject to the court’s review. In its memorandum submitted to the court, the attorney does not argue that the court lacks the power to review the board’s legal determination that the man must register.

To the contrary, the memorandum, citing a law specifically acknowledges that the board initially determines whether or not an offender convicted in an out-of-state jurisdiction is required to register and then makes a recommendation to the court. As a result, it appears that the attorney agrees with the court’s interpretation of the law and does not contest the court’s power to review whether the board’s decision was legally sound.

The court then found no cases from either the court of appeals or the appellate divisions which would preclude the court from reviewing the board’s registration decision. Indeed, no appellate court has addressed the precise issue presented. The court is aware, however, of a decision to the contrary issued by a court of concurrent jurisdiction.

Based on records, registration in the state is also required for those sex crimes offenders convicted in other jurisdictions of any offense which includes all of the essential elements of certain enumerated in the state’s felony sex offenses. Further, the ruling does not define essential elements nor does it provide any further guidance on how to determine if an out-of-state conviction qualifies for the state’s registration.

Subsequently, the man argues that that term should be strictly construed and urges the court to apply the essential elements test developed by the court of appeals for using out-of-state convictions to adjudicate the offender as prior felony offenders. The attorney argues that applying the said test would frustrate the intent of the sex offender act.

Sources revealed that the court of appeals has strictly construed the essential elements test for determining whether an out-of-state conviction qualifies as a prior felony for predicate felon adjudications. In addition, the test requires that the elements of the out-of-state crime be virtually identical to the counterpart elements of the felony. Moreover, in determining whether the test is satisfied, the court is limited to comparing the law with the out-of state ruling, and may not consider the factual allegations in the indictment or the evidence at trial.

The court however agrees with the man that the elements of the federal and the statute are not sufficiently alike to require the man to register in the state as a sex offender. It is apparent that it is possible to violate the federal criminal ruling with depictions of an individual less than eighteen years of age without violating either of the analogous rulings. Since the state and federal rulings have different elements with regard to the age of the victim, the court concludes that the federal ruling fails the essential elements test contained in the sex offender act. Consequently, the man cannot be required to register in the state as a sex offender.

On the other hand, the criminal court is not oblivious of the attorney general’s position that a strict application of the essential elements test may limit the number of convicted offenders who must register and therefore may be inconsistent with the spirit of the sex offender registration act. The recent legal modification of the act made clear that the legislature intended to expand, rather than limit, the act’s scope with regard to out-of-state offenders. However, the court is bound by the language of the law and by the clear holdings of the court of appeals that define the essential elements test.

It is the duty of the parents to protect their children against abuse and violence. But some guardians who sexually abuse their children deserve imprisonment. Whenever you want to help someone who experience sex offense, you can seek legal assistance from the New York City Sex Crime Attorney or NY Criminal Lawyer. You can reach the legal team of attorneys at Stephen Bilkis and Associates office.

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