Saturday, March 20, 2010

Some times a state just wants to put up a giant "Keep Out" sign for sex offenders from other parts of the country. Anyone who has seen quotes from the debates knows that this was a clearly expressed desire of some supporters of the statute.

Other times they are more sophisticated. Correction Law 168-g (1) made the Sex Offender Registration Act applicable to anyone in prison, on probation or on parole as of January 21, 1996. Correction Law 168-k(1) requires registration for sex offenders who move to New York State and whose prior convictions require registration under 168-a(2)(d) (elements test or requiring registration in the other jurisdiction or listed Federal crimes) or 168-A(3)(b) (essential elements of sexually violent offenses). CL 168-k(1) is not limited as to date, so that two people who commit the same crimes, one in NY one in another state, are treated differently.

This, to my mind, violates equal protection, and amounts to a barrier against sex offenders moving to this state. Granted, it's a limited, and perhaps unintended barrier, but it is one nonetheless. A New Yorker whose rape sentence expired January 20, 1996 is not required to register. A Californian whose rape sentence expired January 20, 1976 does have to register ("Keep Out!"). If you are assigned to an out-of-state sex offender case, I recommend challenging the proof that the defendant actually is required to register if the offense is pre-1/21/96 and the proof does not show that the sentence continued past the effective date of the statute.

This argument was rejected in People v McGarghan, 13 Misc3d 811 (NY SCt 2007), on the grounds that the provision did not violate equal protection. That court held that a Vermonter who committed a crime in Vermont before the effective date of the statute is treated the same as a New Yorker who committed the same crime in Vermont before the effective date of the statute. Umm, yeah, that's the test, if we're playing that than which none more Jesuitical can be conceived. By the way, a New Yorker who committed the crime in Alaska while underwater and humming the theme from The Last Remake of Beau Geste is treated the same as a Vermonter who committed the crime while skydiving and humming the theme from Sherlock Holmes Smarter Brother, that's not the issue.

This decision, which also holds (as several Departments have, but the Court of Appeals has not) that the determination by the Board that someone is a sex offender cannot be challenged at SORA, but must be challenged via Article 78. This theory holds that - while the question of what level someone should be classified as cannot be decided administratively because that would violate due process - whether a person is a sex offender at all can be. Got it. The Court of Appeals has addressed whether someone is registerable both via Article 78 and direct appeal (North v Board, 8 NY3d 735 [2007]; People v Kennedy, 7 NY3d 87 [2006]). Thus my belief that such a proceeding is permitted, but not required. I am confident that treating identical crimes, one committed by someone who is already here, one by someone who proposes to move to New York, are treated differently is the basis of my claim that equal protection, and a citizen's right to move about the country, are violated by New York's SORA statute.

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