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Court Discusses Necessity to Register as Sex Offender

A New York Criminal Defense Lawyer said in August 1998, defendant was convicted of lewd and lascivious conduct, in violation of Vermont Statutes. Under Vermont law, the crime was a felony for which the defendant was eligible to be sentenced to up to five years in prison. Defendant was required to register as a sex offender in the state of Vermont as a result of his conviction. He thereafter established residence in New York City, the Board of Examiners of Sex Offenders determined that he was required to register as a sex offender in New York, and the instant Sex Offender Registration Act (SORA) petition was initiated.

A New York Sex crimes attorney said that defendant makes several challenges to the validity of the SORA petition. His first contention is that the court has jurisdiction to determine whether the defendant is required to register as a sex offender in New York, and argues that dismissal is warranted because the defendant’s Vermont conviction does not correspond to a registerable offense in New York. He also argues that the petition must be dismissed because, as applied to defendant’s case, Correction Law §§ 168-a and 168-k (2) violate the Equal Protection Clause and the Privileges and Immunities Clause of the United States Constitution.

A New York Criminal Defense Lawyer said the court has no jurisdiction to determine whether this defendant is required to register as a sex crime offender in New York. Correction Law § 168-a (1) defines a sex offender as a person who is convicted of any of the offenses set forth in section 168-a (2) or (3). This includes a person who is 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”. As defendant was convicted of a felony in Vermont for which he was required to register as a sex offender in Vermont, section 168-a (2) (d) (ii) dictates that he is a sex offender in New York.

A Queens Criminal Defense Lawyer said that Correction Law § 168-k (2) prescribes that when a sex offender establishes residence in New York State, “[t]he board shall determine whether the sex offender is required to register with the division.” The plain language of the statute therefore delegates the registration determination to the Board. That same provision dictates that while the Board must make a recommendation regarding the level of notification, the County Court or Supreme Court in the county of residence of the sex offender must make the ultimate decision regarding the notification level and length of registration. The statute specifically instills the court with the power to hold a hearing in order to make those determinations, but does not include whether an individual has to register in the first place as an issue to be determined at the hearing.

A Nassau County Criminal Lawyer said that while the First Department has not yet specifically addressed the issue of whether the hearing court has the jurisdiction to determine whether an individual has to register, each of the other departments have held that “the Board is the administrative agency that is statutorily empowered to make that determination. The role of the court is limited to assigning defendant a risk level classification and determining whether defendant is a sexual predator”. Those courts have held that a CPLR article 78 proceeding is the appropriate means to obtain a review of the Board’s decision that the person in question must register as a sex offender in New York.

Defendant relies on several cases to support his contention that this court has the power to review the Board’s initial determination that defendant must register, and that to do so the court must determine whether the Vermont statute is equivalent to a comparable New York registerable sex offense. However, those cases can be distinguished from defendant’s case because both involved underlying federal crimes for which there is no attendant federal sex offender registration requirement. In such cases, where the foreign conviction does not have its own registration requirement, the determination of whether the crime is a sex offense in New York is prescribed by Correction Law § 168-a (1) (d) (i), which requires comparison of the elements of the foreign crime and a New York sex offense. While Correction Law § 168-a (1) (d) (i) so prescribes the parameters of how to determine whether a foreign conviction that does not have an accompanying registration requirement is a sex offense, it does not dictate who is empowered to make that comparison and determination.

In contrast, section 168-k (2) specifically gives the Board the power to determine whether someone who has established residence in the state must register in New York when they have already been determined to be a sex offender.

In this case, defendant is statutorily determined to be a sex offender in New York, so no comparison of the statutes is required. That is because the provision that applies to his conviction is section 168-a (2) (d) (ii), not section 168-a (1) (d) (i). The applicable provision defines the crime for which the defendant was convicted as a sex offense because he was convicted of a felony in Vermont for which he is required to register as a sex offender in Vermont. As the statute clearly dictates that this defendant is a sex offender, it also specifically dictates that it is the Board who has the power to determine whether he must register (Correction Law § 168-k [2]). Because the court does not have jurisdiction to review the Board’s determination under these circumstances, the defendant’s motion to dismiss on this ground is denied.

Defendant’s motion to dismiss on constitutional grounds is likewise denied. Defendant contends that the applicable SORA provision which requires him to register as a sex offender after he established residence in New York violates the Equal Protection Clause because it treats out-of-state and New York residents differently.
The applicable provision does not violate the Equal Protection Clause. States have a legitimate interest in requiring offenders who commit registerable offenses in other jurisdictions to register in their new state of residence.

In any event, the applicable SORA provision does not discriminate between out-of-state and New York residents. The initial question, prior to determining which type of constitutional analysis applies, is whether, under otherwise identical circumstances, the SORA would treat a Vermont resident who establishes residence in New York differently than a New York resident. Contrary to defendant’s argument, the analysis is therefore not whether a Vermont resident who commits a crime in Vermont and then establishes residence in New York would be treated differently than a New York resident who commits that same crime in New York. Rather, it is whether a Vermont resident who commits a crime in Vermont and then establishes residence in New York would be treated differently than a New York resident who commits that same crime in Vermont. The answer is that the Vermont resident and New York resident would be treated no differently under the SORA.

As defendant would have been required to register in New York had he been a continuing resident of New York when he was convicted of the Vermont felony, he was not discriminated against based upon his state of residency. Nor does the provision in any way impede his right to travel. His motion to dismiss on equal protection grounds is therefore denied.

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