In the Matter of Mark H. Dewine v. State Bd. of Examiners of Sex Offenders

• Decision Date: 30 September 2011
• Citation: 2011 N.Y. Slip Op. 06705,930 N.Y.S.2d 332,89 A.D.3d 88
• Parties: In the Matter of Mark H. DEWINE, Petitioner–Respondent,v.STATE OF NEW YORK BOARD OF EXAMINERS OF SEX OFFENDERS, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 88

930 N.Y.S.2d 332

2011 N.Y. Slip Op. 06705

In the Matter of Mark H. DEWINE, Petitioner–Respondent,

v.STATE OF NEW YORK BOARD OF EXAMINERS OF SEX OFFENDERS, Respondent–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Sept. 30, 2011.

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.PRESENT: CENTRA, J.P., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.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 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 F.3d 1263, 1266, cert. denied 522 U.S. 1122, 118 S.Ct. 1066, 140 L.Ed.2d 126; see § 168–g; People v. Carey, 47 A.D.3d 1079, 1080, 850 N.Y.S.2d 260, lv. dismissed 10 N.Y.3d 893, 861 N.Y.S.2d 265, 891 N.E.2d 299). “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 N.Y.3d 87, 89, 817 N.Y.S.2d 614, 850 N.E.2d 661). 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 N.Y.3d 745, 748–749, 840 N.Y.S.2d 307, 871 N.E.2d 1133, 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 N.Y.3d at 749, 840 N.Y.S.2d 307, 871 N.E.2d 1133). 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 N.Y.3d at 753, 840 N.Y.S.2d 307, 871 N.E.2d 1133). 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, 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 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...