People v. Bell

• Decision Date: 30 June 2003
• Citation: 778 N.Y.S.2d 837,3 Misc.3d 773
• Court: New York Supreme Court
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>SHERMAN BELL, Defendant.

3 Misc.3d 773
778 N.Y.S.2d 837

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,
v.
SHERMAN BELL, Defendant.

June 30, 2003.

[3 Misc.3d 774]

Bronx Defenders (Robin G. Steinberg and Florian Miedel of counsel), for defendant.

Robert T. Johnson, District Attorney (Seanan L. Reidy of counsel), for plaintiff.

OPINION OF THE COURT

RICHARD LEE PRICE, J.

On October 23, 1981 the defendant was convicted of kidnapping in the first degree (Penal Law § 135.25 [1]) and related crimes. Mr. Bell was sentenced to a term of 20 years to life imprisonment. Briefly, he and two others attempted to rob a man outside of the man's apartment. The robbery was not successful and the intended victim was able to retreat back into his apartment, but in doing so he left his three-year-old daughter and his friend behind in the hallway. The friend talked his way out of the situation and left; the would-be robbers took the child and then concocted a scheme to blackmail the victim and his wife. But this effort was foiled as well, the men were arrested, and the child was recovered without harm.

None of the actions of the defendant or the other two men in any way contained or even intimated a sexual component. Nonetheless, upon his December 2001 release from prison to lifetime parole, the defendant was notified that the Sex Offender Registration Act (SORA) (Correction Law § 168 et seq.) deems him to be a "sex offender" because, under the definition of kidnapping in the first degree (Penal Law § 135.25 [1]), the

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victim of the kidnapping was "less than seventeen years old and the offender is not the parent of the victim." (Correction Law § 168-a [2] [a] [i].) Accordingly, he was told to appear in court so that his classification level could be determined. At that appearance the defendant, through his assigned counsel, argued that because he was never accused of any form of sexual impropriety toward the child (or anyone else), applying the act to him was "arbitrary and capricious" and violated his constitutional rights.

By decision and order of August 1, 2002, this court determined that, pursuant to the statute, Mr. Bell is subject to the classification and registration provisions of the Sex Offender Registration Act because his crime is among the enumerated crimes to which the act applies. (Correction Law § 168-a [2] [a].) A second hearing was ordered to determine what level of classification Mr. Bell should be assigned. At that hearing the defendant, again through his appointed counsel, more specifically argued that application of the SORA to him violated his constitutional rights under the Due Process, Equal Protection, and Ex Post Facto Clauses.

However, those arguments were neither briefed nor fully developed on the record and, because these issues were inchoate, by decision and order of October 22, 2002, this court did not reach them. Instead, defendant was duly classified as a level 1 "Sex Offender," thereby imposing the lowest registration level. However, the decision also noted the seeming unfairness of applying the SORA to the defendant and labeling him a "sex offender" when (1) there was no sexual offense inherent in the facts of the defendant's crimes, and (2) the two codefendants, both of whom were also convicted of kidnapping but were released from prison and completed their parole before the SORA went into effect, are not subject to the act.

Accordingly, by order to show cause signed November 22, 2002, this court's October 22, 2002 order was stayed upon the defendant's motion to reargue the prior determinations, and this time he specifically delineated the impact of the SORA upon him. The moving papers fully briefed the arguments addressed to the asserted violation of the defendant's rights under the constitutional Ex Post Facto, Due Process, and Equal Protection Clauses. The People submitted an opposing brief and defendant has filed a reply memorandum of law. The motion is now deemed submitted for decision. As the parties acknowledge, the issues raised are ones of first impression in this state, and the court wishes to express its gratitude to counsel on both sides for the excellence of their submissions.

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The Ex Post Facto Clause

The Ex Post Facto Clause of the United States Constitution (art I, § 10 [1]) states that "No State shall ... pass any... ex post facto Law ... ," thereby prohibiting the imposition of retroactive punishment on a person convicted of a crime.^[1] The classic American definition of an ex post facto law, now over 200 years old, was set forth by Justice Chase in Calder v Bull (3 Dallas [3 US] 386, 390 [1798]): "1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender."

However, as repeatedly explained by the United States Supreme Court, "Although the `presumption against retroactive legislation is deeply rooted in our jurisprudence,' Landgraf v. USI Film Products, 511 U.S. 244, 265 ... (1994), the Ex Post Facto Clause of the Constitution `applies only to penal statutes which disadvantage the offender affected by them,' Collins v. Youngblood, 497 U.S. 37, 41 (1990)." (Doe v Pataki, 120 F3d 1263, 1272 [2d Cir 1997], cert denied 522 US 1122 [1998]; see also Calder v Bull, supra, 3 Dallas [3 US] at 390-394.) The Court of Appeals for the Second Circuit found in Doe v Pataki, and the United States Supreme Court has recently reaffirmed in Smith v Doe (538 US 84 [2003]), that state sex offender registration laws which were fashioned to comply with the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program (42 USC § 14071) (such as New York's) are not intended as criminal punishments or enhancements, but are essentially civil in nature. Accordingly, application of the SORA to a person convicted of a crime cannot be a violation of the Ex Post Facto Clause.

Defendant argues that, because he did not commit a sexual offense, the application of the SORA to him punitively aggravated his crime, making it greater than it was at the time it was committed. However, as the People respond, both the

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Second Circuit's 1997 decision in Doe v Pataki (supra), and the Supreme Court's decision in Smith v Doe (supra [which was handed down subsequent to the filing of defendant's moving papers]), have settled the question conclusively. Understandably, defendant has abandoned any mention of this prong of his argument in his reply memorandum.

The Due Process Clause(s)

Both the Federal and New York State Constitutions guarantee procedural and substantive due process in a person's dealings with federal, state, and local governments. (See US Const 5th Amend ["No person shall ... be deprived of life, liberty, or property, without due process of law"], 14th Amend, § 1 ["nor shall any State deprive any person of life, liberty, or property, without due process"]; NY Const, art I, § 6 ["No person shall be deprived of life, liberty or property without due process of law"].)

Procedural due process protection affords notice (hopefully in advance) of a possible deprivation of life, liberty or property by the government, and a meaningful opportunity to contest the deprivation prior to its imposition (or if not prior to, in a time and manner that itself will afford sufficient redress if the deprivation is found to be unconstitutional). "The essence of due process is the requirement that a person in jeopardy of serious loss (be given) notice of the case against him and opportunity to meet it." (Mathews v Eldridge, 424 US 319, 348 [1976] [internal quotation marks and citations omitted].)

By contrast, a claim of a substantive due process violation bars "certain government actions regardless of the fairness of the procedures used to implement them." (County of Sacramento v Lewis, 523 US 833, 840 [1998] [internal quotation marks omitted], quoting Daniels v Williams, 474 US 327, 331 [1986].)

"We have emphasized time and again that `[t]he touchstone of due process is protection of the individual against arbitrary action of government,' Wolff v. McDonnell, 418 U.S. 539, 558 ... (1974), whether the fault lies in a denial of fundamental procedural fairness, see, e.g., Fuentes v. Shevin, 407 U.S. 67, 82... (1972) (the procedural due process guarantee protects against `arbitrary takings'), or in the exercise of power without any reasonable justification in the service of a legitimate governmental

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objective, see, e.g., Daniels v. Williams, 474 U.S., at 331 ... (the substantive due process guarantee protects against government power arbitrarily and oppressively exercised) ... [D]ue process protection in the substantive sense limits what the government may do in both its legislative, see, e.g.

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