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Due Process Clauses


On October 23, 1981 the criminal defendant was convicted of kidnapping in the first degree and related crimes. The defendant was sentenced to a term of 20 years to life imprisonment. Briefly, he and two others attempted to rob a man outside of the man’s apartment. The robbery was not successful and the intended victim was able to retreat back into his apartment, but in doing so he left his three-year-old daughter and his friend behind in the hallway. The friend talked his way out of the situation and left; the would-be robbers took the child and then concocted a scheme to blackmail the victim and his wife. But this effort was foiled as well, the men were arrested, and the child was recovered without harm.

None of the actions of the defendant or the other two men in any way contained or even intimated a sexual component. Nonetheless, upon his December 2001 release from prison to lifetime parole, the defendant was notified that the Sex Offender Registration Act (SORA) deems him to be a sex offender because, under the definition of kidnapping in the first degree, the victim of the kidnapping was less than seventeen years old and the offender is not the parent of the victim. Accordingly, he was told to appear in court so that his classification level could be determined. At that appearance, the defendant argued that because he was never accused of any form of sexual impropriety toward the child pornography or anyone else, applying the act to him was arbitrary and capricious and violated his constitutional rights.

By decision and order, the court determined that, pursuant to the statute, the defendant is subject to the classification and registration provisions of the Sex Offender Registration Act because his criminal act is among the enumerated crimes to which the act applies. A second hearing was ordered to determine what level of classification the defendant should be assigned. At that hearing the defendant, again through his appointed counsel, more specifically argued that application of the SORA to him violated his constitutional rights under the Due Process, Equal Protection, and Ex Post Facto Clauses.

However, those arguments were neither briefed nor fully developed on the record and, because these issues were inchoate, by decision and order, the court did not reach them. Instead, the defendant was duly classified as a level 1 Sex Offender, thereby imposing the lowest registration level. However, the decision also noted the seeming unfairness of applying the SORA to the defendant and labeling him a sex crimes offender when there was no sexual offense inherent in the facts of the defendant’s crimes, and the two codefendants, both of whom were also convicted of kidnapping but were released from prison and completed their parole before the SORA went into effect, are not subject to the act.

Accordingly, by order to show cause, the court’s order was stayed upon the defendant’s motion to reargue the prior determinations, and this time he specifically delineated the impact of the SORA upon him.

The defendant argues that, because he did not commit any form of sexual abuse, the application of the SORA to him punitively aggravated his crime, making it greater than it was at the time it was committed. However, as the People respond and the Supreme Court’s decision have settled the question conclusively. Understandably, the defendant has abandoned any mention of this prong of his argument in his reply memorandum.

The People note that the criminal defendant was given proper notice and, thereafter, a full hearing to determine the level of classification he should be subjected to. Therefore, they conclude, he has been afforded all the process he is due.

However, the defendant does not argue that he has been deprived of procedural due process. Rather, he asserts that it is his substantive due process rights that are abridged by application of the SORA to him, and the procedural guarantee of a hearing to contest only the gravity of his classification is irrelevant in his case, because the hearing would not have been held but for the presupposition that the law is validly applied to him. He argues that because the purpose of the SORA is to identify and protect the public from sexual offenders and predators and he is neither, the Sex Offender Registration Act, as applied to him, is an unconstitutional violation of the Constitution’s guarantee of substantive due process.

Obviously, the defendant carries a heavy burden in sustaining his claim. In general, the government may regulate and thereby cut back on our rights and liberties so long as the governmental action bears a rational relationship to a legitimate governmental interest.

In summation, unless there is evidence of sexual motivation, there is no rational basis for categorizing an abduction of a victim who is less than eighteen years old as being a sexually oriented offense. Rather, in such instances, a trial court should have some discretion in determining whether a defendant is a sexually oriented offender. Absent a showing that the abduction was motivated for a sexual purpose, appellant’s classification as a sexually oriented offender cannot stand. Drug possession was not charged.

The defendant’s final assertion is that the SORA requirement that he submitted to being classified and thereafter registered with local law enforcement authorities is a violation of his right to equal protection under the law. Both the Federal and New York State Constitutions guarantee this right.

In analyzing equal protection claims, courts are to be guided by the principle that a legislative classification is not violative of equal protection of the laws if any state of facts rationally justifying it is demonstrated or perceived by the court. Looking again to the purpose behind the statute, the defendant asserts that, while he is not a member of a suspect class such as a racial minority, even under the minimum test there is simply no rational relationship between classification and registration of non-sex offenders and the otherwise legitimate governmental interests of the SORA statute. They are labeled by the state, as sex offenders when they are not. It is also not rational to differentiate between people convicted of non-sexual but registerable offenses, such as kidnapping, and people who commit other, non-registerable, non-sex crimes against children.

Accordingly, the court finds that the SORA as applied to the defendant violates the Equal Protection and the Due Process Clauses of both the United States and New York State Constitutions. By finding the statute to be unconstitutional as applied, it is this court’s judgment that hereafter it should be left to the discretion of the courts, on an individual basis, to make an appropriate determination. In other words, whenever a defendant, who is convicted of a registerable offense that does not in and of itself contain a sexual component, challenges his being subjected to the SORA, the court will hold a hearing to determine if there is a rational basis for doing so. If a rational basis is so found, the court should then proceed to apply strict scrutiny to the specific application of the statute to a defendant such as the defendant.

Here, because the defendant has satisfied the court that he is not properly subject to classification and registration under the SORA, his motion to reargue is granted and, upon re-argument, his motion to declare the statute unconstitutional as applied to him is granted. Accordingly, the Division of Parole is permanently enjoined from requiring him to register, placing him in their special offender unit, or in any other manner treating him as a sexual offender.

Crime against women and children is the worst offense that can be committed by any person. In trying to combat these crimes, Stephen Bilkis and Associates have come up with the group of New York Sex Crime Attorney together with the New York City Criminal Lawyer. If you need their representation, call or visit their offices in the metropolitan area.

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