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Pursuant to Correction Law

In 1994, the petitioner entered a guilty plea as charged in an indictment to first degree aggravated sexual assault of a child, a felony stemming from charges he subjected a 10-year-old relative to sexual contact on several occasions. The court, acting in its discretion under the Code of Criminal Procedure, imposed a deferred adjudication of guilt, suspended imposition of a prison sentence, and placed the petitioner under the maximum 10-year term of community supervision, akin to probation, with 26 terms and conditions, and community service. As a result of the plea, he is required to annually register as a sex offender, for life.

After the petitioner moved to New York, the respondent Board of Examiners of Sex Offenders notified him by letter that he was required to register in New York under the Sex Offender Registration Act based upon that his Texas felony sex offense for which he was required to register as a sex offender in that jurisdiction. Additionally, the respondent Division of Criminal Justice Services notified him by letter that he was also required to register any Internet accounts (with service providers) belonging to him and any e-mail addresses and screen names used by him for Internet chats, social networking or instant messaging. In June 2008, the Board completed a risk level assessment of the petitioner, and made a risk level recommendation to the court in New York County, the county of the petitioner’s residence.

The petitioner commenced his CPLR (Civil Practice and Law Rules) proceeding in Albany County seeking, among other things, reversal of the Board’s determination that he is required to register as a sex offender in New York and of DCJS’s Internet access disclosure directive. The Supreme Court held that the Board had properly determined that he is a sex offender required to register under SORA, and dismissed the petition. He appeals.

To Be Cont….

Pursuant to Correction Law, certain defendants who reside in New York and were convicted of sex offenses in other jurisdictions must register as sex offenders in New York. As relevant here, that section provides that a registerable sex offense includes a conviction of felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the convictions occurred. The petitioner’s principal contention is that the deferred adjudication he received upon his guilty plea is not a conviction under the Texas law and, thus, while he is concededly required to register as a sex offender for life in that jurisdiction, he is not required to register in New York under Correction Law. This argument is untenable.

While SORA does not define conviction, it is appropriate to look to CPL (Criminal Procedure Law), which unequivocally provides that a conviction includes the entry of a plea of guilty to an accusatory instrument (or counts thereof). Indeed, a guilty plea qualifies as a conviction in this state, even before sentencing. Here, the Texas court records reflect that petitioner entered a plea of guilty to a sex offense and said plea was received by the court and entered of record as the plea of the said defendant and, thereafter, the adjudication of guilt was deferred and community supervision and other conditions imposed. As it is undisputed that the underlying Texas sex offense to which the petitioner entered a guilty plea was a felony that required registration as a sex offender in that jurisdiction for life, and entry of a guilty plea constitutes a conviction under New York law, the Board correctly determined that petitioner was required to register as a sex offender under Correction Law, notwithstanding that he received a discretionary deferred adjudication under Texas criminal procedure upon that guilty plea.

Notably, for legitimate policy reasons, SORA does not provide that the various laws of other jurisdictions will control in the determination of whether an admitted, registered sex offender in that jurisdiction must register in this state upon relocating here. Whether petitioner is required to register in this state should ultimately be resolved as a matter of New York law, with the aim of giving effect to the Legislature’s remedial intent. In so doing, we recognize that enforcement of our SORA provisions is a proper exercise of this state’s police powers.

Previously, New York is not required under full faith and credit principles to assign an offender the same risk level classification as that designated by the jurisdiction where the registerable conviction occurred, recognizing that the administrative manner in which a state [like New York chooses to exercise the registration requirements for a sex offender who moves into its jurisdiction falls squarely within the power of that state and is not governed by the procedures in effect in the state like Texas where the offender previously resided. Treating the petitioner’s Texas guilty plea on parity with a guilty plea entered in this state, as a criminal conviction, for purposes of sex offender registration in this state is fundamentally fair and furthers SORA’s purposes of public protection and enhancing law enforcement efforts to combat sex crimes. Moreover, the Board’s treatment of the petitioner’s Texas guilty plea and deferred adjudication as a conviction requiring registration as a sex offender in this state results in that plea having the same (or no greater) consequence in this state as in Texas.

ToBe Cont….

In the absence of any reason to conclude that the Legislature in amending SORA in 1999 did not intend the word conviction to have the same statutory meaning given that term in the Criminal Procedure Law, we decline to interpret this important provision of SORA in a manner that would lead to unintended and absurd consequences for a New York resident based upon a foreign-jurisdiction guilty plea to a felony sex offense that requires lifelong registration in that jurisdiction. That petitioner received a discretionary, alternative adjudication (not available in New York) upon his guilty plea to a felony sex offense requiring life-long sex offender registration in that jurisdiction does not obviate the remedial objectives of SORA, which is designed to assess the offender’s risk of recidivism and the particularized threat posed to and notification of citizens of this state.

Finally, the Supreme Court correctly rejected the petitioner’s other contention that he is not required to register under SORA because his 1994 Texas deferred conviction was rendered prior to SORA’s original effective date in 1996. When the Legislature amended SORA to require offenders to register for felony convictions requiring registration in other jurisdictions, it specifically provided that those amendments shall apply to persons convicted of an offense committed prior to such date who on such date, have not completed service of the sentence imposed thereon. The petitioner’s 10-year period of community supervision was still being served in 2000 and was not completed until March 31, 2004 and, thus, the amended registration requirement applied to him. Community supervision, as imposed by the Texas court is akin to a sentence of probation in New York in which reasonable conditions may be imposed, and the violation of which may result in the offender’s arrest, detention and revocation of probation and imposition of a term of incarceration. Thus, the Board properly determined that the petitioner is required to register as a sex offender in New York, and DCJS was authorized to require the petitioner to submit the requested Internet-related information.

In order to achieve a safe community for our children, we must be properly informed and well aware of the people in our surroundings. If you want to pursue a sex crime related case, seek for the New York Sex Crime Lawyer and the NYC Criminal Attorney from Stephen Bilkis and Associates.

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