SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
918
CA 11-00774
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.
IN THE MATTER OF MARK H. DEWINE,
PETITIONER-RESPONDENT,
V OPINION AND ORDER
STATE OF NEW YORK BOARD OF EXAMINERS OF
SEX OFFENDERS, RESPONDENT-APPELLANT.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ROBERT M. GOLDFARB OF
COUNSEL), FOR RESPONDENT-APPELLANT.
WEISBERG, ZUKHER & VANSTRY, PLLC, SYRACUSE (DAVID E. ZUKHER OF
COUNSEL), FOR PETITIONER-RESPONDENT.
Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), entered August 12, 2010 in a proceeding
pursuant to CPLR article 78. The judgment granted the petition and
vacated and annulled the determination of respondent that petitioner
is a sex offender subject to registration pursuant to the Sex Offender
Registration Act.
It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs and the petition is
dismissed.
Opinion by PERADOTTO, J.: Petitioner commenced this CPLR article
78 proceeding seeking to annul the determination that he is a sex
offender subject to registration pursuant to the Sex Offender
Registration Act ([SORA] Correction Law § 168 et seq.). Supreme Court
granted the petition and annulled the determination, concluding that
petitioner was not subject to SORA’s registration requirements. We
agree with respondent that petitioner, who was on probation in Wyoming
for “ ‘[s]ex offense[s]’ ” within the meaning of Correction Law §
168-a (2) (d) (i) on the effective date of SORA, is required to
register as a sex offender in New York. We therefore conclude that
the judgment should be reversed and the petition dismissed.
I
SORA, which went into effect on January 21, 1996 (see L 1995, ch
192, § 3), imposes registration requirements on “ ‘[s]ex offender[s],’ ”
i.e., “any person who is convicted of” certain sex offenses enumerated
in the statute (Correction Law § 168-a [1]). SORA “applies to sex
offenders incarcerated or on parole or probation on its effective
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date, as well as to those sentenced thereafter, thereby imposing its
obligations on many persons whose crimes were committed prior to the
effective date” (Doe v Pataki, 120 F3d 1263, 1266, cert denied 522 US
1122; see § 168-g; People v Carey, 47 AD3d 1079, 1080, lv dismissed 10
NY3d 893). “Pursuant to Correction Law § 168-a (2) (d), certain
defendants convicted of sex offenses in other jurisdictions must
register as sex offenders in New York” (People v Kennedy, 7 NY3d 87,
89). As relevant here, “a person convicted of a felony in another
jurisdiction . . . has been subject to registration in New York if the
foreign offense ‘includes all of the essential elements’ of one of the
New York offenses listed in SORA” (Matter of North v Board of
Examiners of Sex Offenders of State of N.Y., 8 NY3d 745, 748-749,
quoting L 1995, ch 192, § 2). In 1999, the Legislature added another
basis for registration arising from a foreign conviction, i.e., that
an offender must register in New York if he or she was convicted of a
felony “for which the offender is required to register as a sex
offender in the jurisdiction in which the conviction occurred” (L
1999, ch 453, § 1; see North, 8 NY3d at 749). Where a sex offender is
convicted in another jurisdiction and then relocates to New York,
Correction Law § 168-k (1) provides that he or she “shall notify the
division [of criminal justice services] of the new address no later
than [10] calendar days after such sex offender establishes residence
in [New York].”
II
We agree with the court and petitioner that the 1999 amendments
to Correction Law § 168-a do not apply to petitioner. Those
amendments are retroactive only with respect to “persons convicted of
an offense committed prior to [January 1, 2000] who, on such date,
have not completed service of the sentence imposed thereon” (L 1999,
ch 453, § 29). Here, petitioner was discharged from probation in
Wyoming and thus completed service of his sentence in June 1996. As
the court properly concluded and petitioner correctly concedes,
however, the crimes of which petitioner was convicted in Wyoming
qualify as sex offenses in New York under the “essential elements”
provision of Correction Law § 168-a (2) (d) (i). “[T]he ‘essential
elements’ provision in SORA requires registration whenever an
individual is convicted of criminal conduct in a foreign jurisdiction
that, if committed in New York, would have amounted to a registrable
New York offense” (North, 8 NY3d at 753). Here, the conduct
underlying petitioner’s Wyoming conviction constitutes, inter alia,
sexual abuse in the second degree (Penal Law § 130.60 [2] [sexual
contact with a child less than 14]) and sexual abuse in the first
degree (§ 130.65 [3] [sexual contact with a child less than 11]), both
of which constitute registrable offenses (see Correction Law § 168-a
[2] [a] [i]; [3] [a] [i]).
It is undisputed that petitioner was “on parole or probation”
when SORA went into effect (Correction Law § 168-g [2]). Petitioner
contends, however, that the retroactivity provisions contained in
Correction Law § 168-g are limited to individuals who were on
probation or parole in New York when SORA went into effect and,
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inasmuch as he was on probation in Wyoming on that date and his
probation term expired before he moved to New York, he is not subject
to the statute’s requirements. We reject that contention.
Pursuant to Correction Law § 168-g (1),
“[t]he division of parole or department of
probation and correctional alternatives in
accordance with risk factors pursuant to section
[168-l] . . . shall determine the duration of
registration and notification for every sex
offender who on the effective date of [SORA] is
then on parole or probation for an offense
provided for in [section 168-a (2) or (3)].”
Section 168-g (2) further provides that
“[e]very sex offender who on the effective date of
[SORA] is then on parole or probation for an
offense provided for in [section 168-a (2) or (3)]
. . . shall within [10] calendar days of such
determination register with his [or her] parole or
probation officer. On each anniversary of the sex
offender’s initial registration date thereafter,
the provisions of section [168-f] . . . shall
apply. Any sex offender who fails or refuses to
so comply shall be subject to the same penalties
as otherwise provided for in [SORA that] would be
imposed upon a sex offender who fails or refuses
to so comply with the provisions of [SORA] on or
after such effective date.”
There is no question that the provisions in Correction Law §
168-g mandating registration for New York probationers on SORA’s
effective date did not apply to petitioner, who was still on probation
in Wyoming at that time. We nevertheless reject petitioner’s
contention that the retroactivity provisions set forth in that section
are limited to those sex offenders who were on parole or probation in
New York at the time of SORA’s implementation. Indeed, neither the
language of the statute nor the legislative history supports
petitioner’s restrictive interpretation. The language of the statute
does not differentiate between in-state and out-of-state probationers,
and we discern no such intent in the legislative history. Rather,
SORA’s legislative history evinces an intent to include all
individuals then on parole or probation within its ambit. For
example, a July 11, 1995 letter from SORA’s Senate Sponsor to the
Governor states that the proposed statute “applies to those offenders
adjudicated on or after the effective date, and to all persons still
serving a sentence of incarceration, probation or parole as of the
date of enactment” (Letter from Senate Sponsor, Bill Jacket, L 1995,
ch 192, at 9 [emphasis added]). The Assembly Sponsor likewise stated
in a letter to the Governor that the proposed statute applied to
“those offenders under supervision or in prison” (Letter from Assembly
Sponsor, Bill Jacket, L 1995, ch 192, at 15). That Assembly Sponsor
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explained that the rationale for applying SORA retroactively was that
“sweeping so narrowly as to only reach offenders from enactment
forward leaves the majority of sexual offenders cloaked in anonymity”
(id.), and he noted the low rehabilitation and high recidivism rates
for sex offenders (see id. at 13-15). In addition, the budget report
with respect to SORA explains that it “creates a registry requirement
for convicted sex offenders presently on probation or parole and for
those sex offenders who will be released from correctional facilities
in the future” (Budget Rep on Bills, Bill Jacket, L 1995, ch 192, at
17 [emphasis added]).
“SORA is a remedial statute” (North, 8 NY3d at 752), and it
therefore must be liberally construed “to effect or carry out the
reforms intended and to promote justice” (McKinney’s Cons Laws of NY,
Book 1, Statutes § 321). “A liberal construction . . . is one [that]
is in the interest of those whose rights are to be protected, and if a
case is within the beneficial intention of a remedial act it is deemed
within the statute, though actually it is not within the letter of the
law” (id.). SORA’s “aim is to ‘protect[ ] communities by notifying
them of the presence of individuals who may present a danger and
enhancing law enforcement authorities’ ability to fight sex crimes’ ”
(North, 8 NY3d at 752, quoting Doe, 120 F3d at 1276; see also Senate
Introducer Mem in Support, Bill Jacket, L 1995, ch 192, at 6).
Individuals such as petitioner who were serving a sentence or on
parole or probation in another state at the time of SORA’s
implementation are clearly no less dangerous than similarly situated
individuals in New York.
III
We further note that the statutory construction urged by
petitioner and adopted by the court would lead to objectionable and
unreasonable consequences (see McKinney’s Cons Laws of NY, Book 1,
Statutes § 141; Matter of Smith v Devane, 73 AD3d 179, 183-184, lv
denied 15 NY3d 708). Pursuant to petitioner’s restrictive
interpretation of SORA, an out-of-state sex offender on probation at
the time of the statute’s implementation who later moves to New York
would be excluded from the notification and registration requirements
thereof, while a sex offender on probation in New York at the same
time would be subject to such requirements. Such an interpretation
could have the unintended and undesirable effect of encouraging sex
offenders convicted in other states to evade the registration
requirements of those states by relocating to New York. Indeed, as
one trial court aptly noted,
“[s]tates have a legitimate interest in requiring
offenders who commit [registrable] offenses in
other jurisdictions to register in their new state
of residence. [Otherwise], an offender could
avoid sex offender registration requirements
simply by moving his [or her] state of residence,
thereby frustrating the purpose behind sex
offender registration laws” (People v McGarghan,
18 Misc 3d 811, 814, affd 83 AD3d 422).
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IV
Finally, contrary to petitioner’s contention, requiring him to
register as a sex offender pursuant to Correction Law § 168-k would
not result in disparate treatment on the basis of residency. Rather,
such an interpretation would subject petitioner to the same
registration and notification requirements applicable to a similarly
situated individual who was on probation in New York at the time of
SORA’s implementation.
V
Accordingly, we conclude that the judgment should be reversed and
the petition dismissed.
Entered: September 30, 2011 Patricia L. Morgan
Clerk of the Court