North v. Bd. of Examiners of Sex Offenders

Decision Date02 July 2007
Docket Number99.
PartiesIn the Matter of Todd NORTH, Appellant, v. BOARD OF EXAMINERS OF SEX OFFENDERS OF STATE of New York, Respondent.
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURT

GRAFFEO, J.

In 2004, petitioner Todd North pleaded guilty to a federal possession of child pornography offense. Our task is to determine whether the Board of Examiners of Sex Offenders erred when it concluded that petitioner's conviction in a foreign jurisdiction required him to register under New York's Sex Offender Registration Act (SORA). We conclude that petitioner's federal conviction warranted registration under SORA.

Federal agents executed a search warrant at petitioner's home on February 6, 2002, seizing his computer. Examination of the computer revealed that petitioner had knowingly purchased a subscription to an Internet site that was tailored to appeal to individuals with a sexual interest in children. Petitioner acknowledged to federal authorities that, over a period of four or five months, he downloaded and viewed numerous images depicting children ages 7 to 17 years engaged in sexual acts. In November 2004, petitioner pleaded guilty in United States District Court for the Western District of New York to a possession of child pornography offense (18 USC § 2252A [a][5][B]) and was sentenced to five years probation with 24 days of electronic monitoring.

At the state level, the Board of Examiners of Sex Offenders, proceeding in accordance with Correction Law § 168-k, concluded that petitioner was required to register under SORA. The Board found that petitioner had been convicted of a sex offense as defined in Correction Law § 168-a (2)(d), which addresses when a person convicted in a foreign jurisdiction (such as federal court) must register in New York. After the Board rejected his request for reconsideration, petitioner commenced this CPLR article 78 proceeding challenging the registration determination. Although petitioner acknowledged that SORA had been amended in 2002 to explicitly cover certain federal convictions (including his child pornography offense) in Correction Law § 168-a (2)(d), he argued that the 2002 amendments did not apply to him. Petitioner claimed that he fell within a "loophole" created in the legislation's complex effective date provision because he committed his offense before the effective date of the new amendments.

In response, the Board contended that, independent of the 2002 amendments, petitioner was required to register because his federal offense contained the same "essential elements" as the New York crime of possession of a sexual performance by a child, a registrable offense. The Board further asserted that the 2002 amendments specifically listing petitioner's federal offense embraced petitioner because he was convicted in 2004—two years after the legislation was enacted.

Supreme Court denied the petition and dismissed the proceeding, concluding that registration was required under SORA's "essential elements" provision, which predated the 2002 amendments (see Correction Law § 168-a [2][d][i]). That provision mandates registration for a person convicted in a foreign jurisdiction of a crime containing the "essential elements" of a New York offense that is subject to registration. The court noted that the federal child pornography offense and New York's most closely analogous offense (possession of a sexual performance by a child) were not identical because the federal offense criminalizes possession of pornographic images of children under age 18 while the New York offense covers pornographic images of children under 16 years of age. But finding it undisputed that petitioner possessed pornographic images of children under age 16, the court held that petitioner engaged in conduct addressed by the New York offense, thereby meeting the "essential elements" standard.

The Appellate Division agreed that petitioner was required to register under SORA but rejected Supreme Court's rationale. The Court analogized the SORA "essential elements" analysis to the comparison undertaken when a court assesses whether a defendant's criminal sentence should be enhanced as a result of a prior foreign conviction, and reasoned that the "essential elements" standard is not met unless the elements of the federal offense are virtually identical to the elements of the registrable state offense to which it is compared. Given the distinctions between the victim age provisions in the federal and New York offenses, the Court determined that standard was not met. However, noting that the 2002 amendments had been intended to clarify that individuals convicted of the federal offenses in question were required to register under SORA, the Court concluded that the 2002 amendments applied to petitioner and he must register under Correction Law § 168-a (2)(d) (iii).1 This Court granted petitioner leave to appeal and we now affirm.

Since the inception of SORA in 1995, a person convicted of a felony in another jurisdiction, including conviction of a federal crime, 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 (see L. 1995, ch. 192, § 2). In 1999, the Legislature added another basis for registration arising from a foreign conviction— an offender must register in New York if that person committed a felony subject to registration in the foreign jurisdiction (see L. 1999, ch. 453, § 1). SORA was again amended in 2002 to clarify that particular federal offenses are subject to New York's registration requirement and the amendments removed the requirement that the foreign offense be a felony (subject to a potential death sentence or prison sentence of more than one year) (see L. 2002, ch. 11, § 1). In addition, the foreign conviction provision was reorganized into three subsections. As a result of this legislative expansion, the definition of a registrable "sex offense" now includes

"a conviction of (i) an offense in any other jurisdiction which includes all of the essential elements of any such crime provided for in paragraph (a), (b) or (c) of this subdivision or (ii) 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 or, (iii) any of the provisions of 18 U.S.C. 2251, 18 U.S.C. 2251A, 18 U.S.C. 2252, 18 U.S.C. 2252A, or 18 U.S.C. 2260, provided that the elements of such crime of conviction are substantially the same as those which are a part of such offense as of the date on which this subparagraph takes effect" (Correction Law § 168-a [2][d]).

In People v. Kennedy, 7 N.Y.3d 87, 817 N.Y.S.2d 614, 850 N.E.2d 661 (2006), we addressed whether a member of the United States Navy who was convicted by general court-martial of "indecent assault" under the Uniform Code of Military Justice was required to register under Correction Law § 168-a (2)(d)(ii). We concluded that registration was not warranted under subsection (ii) because the People failed to establish that the foreign jurisdiction where the defendant was convicted—the Navy—maintains a sex offender registry.

Here, the Board relies on two different subsections of the statutesubsections (i) and (iii). Subsection (i) directs that a person convicted of an offense in a foreign jurisdiction is required to register in New York when the foreign offense contains "all of the essential elements" of a New York offense that is subject to registration. Although the essential elements provision has been part of SORA since its enactment in 1995, this is our first occasion to interpret it.

The Board argues that petitioner's federal possession of child pornography offense is comparable to the New York offense of possessing a sexual performance by a child (Penal Law § 263.16), a class E felony subject to registration under Correction Law § 168-a (2)(a)(i). Petitioner's federal felony offense, codified at 18 USC § 2252A (a)(5)(B), makes it unlawful for any person to

"knowingly possess[] any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer."

The term "child pornography" includes any "computer or computer-generated image or picture" involving "the use of a minor engaging in sexually explicit conduct" (18 USC § 2256[8][A]) and the term "`minor' means any person under the age of eighteen years" (18 USC § 2256[1]).

Under Penal Law § 263.16, "[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 term "performance" includes any motion picture or photograph (Penal Law § 263.00[4]). Petitioner does not dispute that, like the federal crime, the New York offense criminalizes possession of computer images of children engaged in sexually explicit activity—the conduct underlying his federal conviction.

In asserting that the New York crime is not sufficiently similar to the federal offense to meet SORA's "essential elements" inquiry, petitioner focuses on the maximum victim age designations in the two offenses. While the federal offense criminalizes possession of pornography involving children under the age of 18, the New York provision deals only with possession of pornography involving children under the...

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