A man pleaded guilty in the United States District Court to an indictment charging a federal class C felony, carrying a potential punishment of more than one-year imprisonment. The indictment charged that he attempted to purchase videotapes depicting child pornography. The underlying facts indicate that the man, using a computer, ordered tapes which depicted sex acts involving children ages 5, 6 and 14 years old.
Based upon such conviction, the New York State Board of Examiners of Sex Offenders, acting pursuant to the New York Sex Offender Registration Act (SORA), Correction Law, determined that the man was required to register in New York State as a sex offender, and so notified him. The man has challenged the applicability of SORA to him on the ground that the federal conviction does not include all of the essential elements of the applicable designated felony as set forth in SORA.
SORA requires a person who has been convicted of certain criminal offenses, referred to in SORA as sexual offenses, to register as a sex crimes offender in the State of New York. A sexual offense is defined by express reference to a list of New York crimes if the conviction was in New York. Under SORA, crimes committed in other jurisdictions, (which also imposes a registration requirement) include a conviction under federal law in a federal court in New York. There are two alternate criteria established to determine whether such crime is a sexual offense under SORA which requires SORA registration.
The first criteria is whether the conviction in the other jurisdiction was a conviction of an offense which includes all of the essential elements of any such felony or whether the other conviction was a conviction 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.
The People seek to require the man to register pursuant to the First Criterion. The man objects on the ground that the federal conviction does not include all the elements of the applicable designated felony as set forth in the New York State Correction Law. The man and the People agree that the relevant New York State provision is Penal Law possessing a sexual performance by a child, a class E felony which states that 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 federal crime for which the man was convicted provides, in pertinent part, that any person who knowingly receives or distributes any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer shall be punished as provided in subsection of the statute. Child pornography as defined in this statute requires the person depicted to have been a minor, which is defined as any person under the age of 18 years.
The differences, the man argues, are that the federal criminal statute criminalizes possession of images of children under 18 (as distinct from the New York law which criminalizes possession of images of children under 16) and that the federal law requires that the offense be committed by the use of the mails or other shipment or transport in interstate commerce, including by computer (as distinct from the New York law which contains no such requirement).
The second objection is, upon analysis, almost frivolous. The requirement for an instrumentality of interstate commerce in the federal law provides the jurisdictional basis for federal action and legislation. The implied correlative in New York law is that for a conviction under Penal Law, the possession would have to have been in New York. Any jury instruction charging a violation of Penal Law would, in New York, have to include, as an element of a crime charging possession that the crime was committed in the county in which the possession occurred. Yet, to claim that the absence of such jurisdictional requirement where the crime was not committed in New York means that such crime did not have the same essential elements of a New York crime, cannot be serious if the SORA provisions, which consider how crimes in other jurisdictions are to be considered in a SORA registration, are to have any meaning. Here, the claim that the federal jurisdictional predicate somehow by itself excludes the man’s federal crime from inclusion under SORA is even weaker. First, in fact, he was in New York County when he attempted to acquire the videotapes, and second, the jurisdictional requirement is for the federal crime, in addition to all other elements, and not in substitution therefore. While an essential element necessary for a conviction in New York missing in the federal prosecution would bar a conviction in such proceeding from consideration under SORA, an additional element should not. In the former case, there would be no basis to believe an analogous crime had been committed; in the latter case, there would only be a possibility that some persons who might have been convicted in New York would not be convicted under the federal statute which requires additional elements to be proven for conviction.
To Be cont….
A person who in any way is a threat or became a threat to the safety and life of a child should be labeled properly to ensure any child’s protection. If you want to make sure that our community is free from sex offenders, team up with the New York City Sex Crime Lawyer or the New York Criminal Attorney from Stephen Bilkis and Associates to can help you win your legal actions.