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SORA became effective on January 21, 1996

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.

It is thus clear that essential elements cannot be derived from a mechanical parsing, but must be considered by applying appropriate standards of statutory construction.

SORA became effective on January 21, 1996. It imposed a notification and registration requirement on individuals convicted of certain sex crimes. Such individuals are to be classified into one of three levels which level then triggers a particular mode of community notification. SORA followed the adoption of similar laws in New Jersey and elsewhere, sometimes called Megan’s Laws, in remembrance of Megan Kanka, a young girl who was murdered by a felon who had been convicted of a sexual felony, served his time and who, after his release, resided in the victim’s neighborhood.

After its enactment in 1995, SORA was challenged on numerous grounds. State and federal courts in New York have reviewed the constitutional implications of SORA, including ex post facto prohibition, double jeopardy and other due process rights, and, with minor exceptions not relevant here, have come to the conclusion that the registration requirements of SORA are valid. The courts examined the Act’s legislative intent, purpose, design, history and effects, among other tests, in order to determine whether SORA could pass constitutional muster.

The courts first asked whether SORA was remedial or punitive. In examining the legislative findings, courts reviewing SORA make note of the express legislative intent of SORA set forth in the statute itself.

The legislature finds that the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, and that the protection of the public from these offenders is of paramount concern or interest to government. The legislature further finds that law enforcement agencies’ efforts to protect their communities, conduct investigations and quickly apprehend sex offenders are impaired by the lack of information about sex offenders who live within their jurisdiction and that the lack of information shared with the public may result in the failure of the criminal justice system to identify, investigate, apprehend and prosecute sex offenders.

The system of registering sex offenders is a proper exercise of the state’s police power regulating present and ongoing conduct. Registration will provide law enforcement with additional information critical to preventing sexual victimization and to resolving incidents involving sexual abuse and exploitation promptly. It will allow them to alert the public when necessary for the continued protection of the community. Rape was not involved.

Persons found to have committed a sex offense have a reduced expectation of privacy because of the public’s interest in safety and in the effective operation of government. In balancing [offenders’] due process and other rights, and the interests of public security, the legislature finds that releasing information about sex offenders to law enforcement agencies and, under certain circumstances, providing access to limited information about certain sex offenders to the general public, will further the primary government interest of protecting vulnerable populations and in some instances the public, from potential harm.

Therefore, the state’s policy, which will bring the state into compliance with the federal crime control act is to assist the local law enforcement agencies’ efforts to protect their communities by requiring sex offenders to register and to authorize the release of necessary and relevant information about certain sex offenders to the public in this act.

Based in part on this express legislative statement, the New York State courts have almost uniformly held that the laws requiring registration of sex offenders are remedial and therefore constitutional. In most cases, the courts have found SORA does not violate double jeopardy rights or the Ex Post Facto Clause. Requirements for notification and registration are civil and remedial and do not constitute punishment. Megan’s Law was adopted as a remedial measure to ameliorate the danger to the public caused by the release of sex offenders and does not violate the petitioner’s double jeopardy rights.

Courts of other jurisdictions have similarly held that requirements of Megan’s Laws of other states did not amount to punishment and could be legitimately considered remedial. A statute that can fairly be characterized as remedial, both in its purpose and implementing provisions, does not constitute punishment even though its remedial provisions have some inevitable deterrent impact, and even though it may indirectly and adversely affect, potentially severely, some of those subject to its provisions. Such a law does not become punitive simply because its impact, in part, may be punitive unless the only explanation for that impact is a punitive purpose. The court agreed with the Legislature that sex offenders’ past behavior is a strong predictor of future conduct. Drug possession was not involved.

Remedial statutes are those which are made to supply some defect or abridge some superfluity in the former law, or which supply a remedy where none previously existed. Remedial statutes are also referred to as statutes designed to correct imperfections in prior law by generally giving relief to the aggrieved party.

The court has reviewed documents from the man’s case from the District Court including copies of the indictment and authenticated copies of the presentence investigation report. The latter was prepared by a United States Probation Officer, United States District Judge, after the defendant’s plea and before imposition of sentence. The report contains several types of documents, including an analysis of the crime committed by the defendant and the sentencing options and recommendations of the Government, as well as copies of the e-mail communications between the defendant and the undercover postal agent who posed as a seller of pornographic videotapes and communicated with the defendant regarding the defendant’s purchase of these videotapes. The e-mails between the defendant and the agent contain information regarding the age of the minors in tapes the defendant attempted to purchase. Specifically, the tapes ordered by defendant were to contain child pornography depictions of 5 or 6 year olds, 11 year olds, or 14 year olds.

The document is accepted by this court under the common-law hearsay exception for public records. The court may receive an authenticated document and take judicial notice of the authenticity of the document with a proper official seal or signature affixed by an officer of the Federal Government. The man offered no evidence to the contrary or otherwise challenged the presentence investigation report.

Therefore, based upon the available, reliable and admissible facts of the defendant’s federal conviction, the court finds that the defendant was convicted of a felony which contains the essential elements of a New York felony, and he must register as a sex offender under SORA.

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.

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