People v. Cintron

• Decision Date: 25 July 2006
• Docket Number: No. 7862/87 ,7862/87
• Citation: 2006 NY Slip Op 26301,827 N.Y.S.2d 445,13 Misc.3d 833
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. ELIEZER CINTRON, NELSON CORDERO, DWAYNE GLOVER, MARKO IVESIC and FRANCIS JACKSON, Defendants-Petitioners.
• Court: New York Supreme Court

13 Misc.3d 833

827 N.Y.S.2d 445

2006 NY Slip Op 26301

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. ELIEZER CINTRON, NELSON CORDERO, DWAYNE GLOVER, MARKO IVESIC and FRANCIS JACKSON, Defendants-Petitioners.

No. 7862/87

Supreme Court, Bronx County.

July 25, 2006.

Legal Aid Society, New York City (Mitchell J. Briskey of counsel), for Eliezer Cintron, defendant.

Pierre Sussman, Bronx, for Nelson Cordero and Dwayne Glover, defendants.

Angel Perez, Tarrytown, for Marko Ivesic, defendant.

Office of the Appellate Defender, New York City (Margaret E. Knight of counsel), for Francis Jackson, defendant.

Robert T. Johnson, District Attorney, Bronx (Jill Starishevsky of counsel), for plaintiff.

OPINION OF THE COURT

MEGAN TALLMER, J.

The above-captioned cases are joined together for decision. The five named petitioners seek to be relieved of the obligation to register as sex offenders pursuant to the Sex Offender Registration Act¹ (hereinafter referred to as SORA). Each petitioner claims that SORA is unconstitutional as applied to him.² The People oppose petitioners' applications for exemption from the registration requirements of SORA. The New York State Attorney General's office was notified of the Jackson and Cintron motions and declined to take a position.

The Facts

Eliezer Cintron was convicted of criminal possession of cocaine, unlawful imprisonment, endangering the welfare of a child and misdemeanor assault. He kept his girlfriend and her two children prisoners in her apartment. Although no sexual behavior was alleged, unlawful imprisonment of a child by a nonparent is one of the crimes subject to SORA.³

Nelson Cordero was convicted of burglary in the first degree and unlawful imprisonment in the second degree. He broke into the home of his former common-law wife. After forcing his son and another 15-year-old boy into the bathroom, Cordero tied up the 15-year-old boy with wire rope. There was no allegation that the boy was harmed sexually in any way, but Cordero is considered a "sex offender" for SORA purposes.

Dwayne Glover was convicted of attempted murder in the second degree, robbery in the first degree and unlawful imprisonment in the first degree. He entered an apartment armed with a loaded gun and imprisoned the occupants for about seven hours. Present in the apartment were two women, a 12-year-old girl and a six-year-old boy. Glover directed all of them to lie on the bedroom floor. No sexual contact was alleged but unlawful imprisonment of a minor by a nonparent requires registration under SORA.

Marko Ivesic pleaded guilty to kidnapping in the second degree and unlawful imprisonment in the first degree. He broke into the home of his brother-in-law, with whom his estranged wife was living. When Ivesic's wife, her sister and three children arrived home, he pointed a loaded shotgun at them, handcuffed his wife and made her lie face down on the floor. He told her that he intended to kill the entire family. He also pointed the shotgun at his brother-in-law and his niece. Ivesic had no sexual contact with any of the seven people he held at gunpoint, but both kidnapping in the second degree⁴ and unlawful imprisonment of a minor by a nonparent require registration under SORA.

Francis Jackson was convicted of promoting prostitution in the second degree and attempted kidnapping in the second degree. Jackson and his girlfriend forced two women to engage in prostitution over the course of several days. He kidnapped the son of one of the women to compel her to continue prostituting herself. There was no claim that Jackson either perpetrated or intended to commit any kind of sexual misconduct upon the child. However, attempted kidnapping in the second degree of a child by a nonparent is included in SORA's definition of "sex offense."

The Law

A. The Jacob Wetterling Act

In 1989, Jacob Wetterling, an 11-year-old boy, was riding his bike home with his brother Trevor and a friend named Aaron. A masked man with a gun approached and ordered the boys to lie face down on the ground. The man asked each of the boys their age. After they responded, the man told Trevor and Aaron to run into the woods and not look back or they would be shot. When Aaron and Trevor glanced back, they saw the masked man grab Jacob's arm. Once they reached the wooded area, they turned to find that Jacob and the man were gone. Jacob Wetterling has never been found.

In response to their son's kidnapping, Jacob's parents formed the Jacob Wetterling Foundation, an advocacy group for children's safety. The Foundation's mission, stated on its Web site,⁵ is to protect children from sexual exploitation and abduction. In 1994, the Wetterlings, along with other interested individuals and groups, successfully lobbied Congress to pass what is commonly known as "the Jacob Wetterling Act" (hereinafter referred to as JWA).⁶

The objectives of JWA are set out in a report of the Committee on the Judiciary to the House of Representatives:

"To address crimes of violence and molestation . . . against children in the United States, H.R. 324 requires the Attorney General to establish guidelines for State programs that require any person convicted of such crimes to register a current address with a designated State law enforcement agency for ten years after release from prison or being placed on parole, supervised release or probation. The bill sets forth requirements to an approved State registration program....

"Each State has three years from the date of enactment to comply with the guidelines established by the Attorney General. The allocation of [federal] funds ... received by a State not in compliance with such guidelines within that time period may be reduced by ten percent, and those unallocated funds reallocated to the States in compliance with the guidelines....

"The Committee believes that protection of children from violence and sex offenses falls clearly within the Federal government's purview in protecting the health, safety and welfare of its citizens. The guidelines created in this bill serve a legitimate Federal governmental purpose." (HR Rep No. 103-392, 103rd Cong, 1st Sess, reprinted in 1993 WL 484758.)

JWA requires every state to adopt a registration program for sexual predators, sexually violent offenders and persons convicted of a criminal offense against a minor. "[C]riminal offense against a victim who is a minor" is defined to mean any offense specified by state law comparable to kidnapping or false imprisonment of a minor, other than by a parent. (42 USC § 14071 [a] [3] [A] [i], [ii].)

JWA directs the Attorney General to establish guidelines for state programs implementing the provisions of the law. Those guidelines, adopted in 1996, provide:

"The specific clauses in the definition of `criminal offense against a victim who is a minor' are as follows:

"(1) Clauses (i) and (ii) cover kidnaping of a minor (except by a parent) and false imprisonment of a minor (except by a parent). All states have statutes that define offenses—going by such names as `kidnapping,' `criminal restraint,' or `false imprisonment'—whose gravamen is abduction or unlawful restraint of a person. States can comply with these clauses by requiring registration for persons convicted of these statutory offenses whose victims were below the age of 18." (Final Guidelines for the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 61 Fed Reg 15110, 15113 [1996], reprinted in 1996 WL 153812.)⁷

JWA and the federal guidelines adopted pursuant to JWA thus mandate that kidnapping and unlawful imprisonment of a minor by a nonparent be included in any state registration program. The guidelines further provide that although states are free to make other offenses subject to registration, they must at least incorporate the offenses designated in JWA. (61 Fed Reg at 15112, reprinted in 1996 WL 153812.)

B. SORA

SORA was passed by the New York Legislature in 1995 and became effective January 21, 1996. Section 1 of the law enacting SORA, entitled "Legislative purpose or findings," states:

"The system of registering sex offenders is a proper exercise of the state's police power regulating present and ongoing conduct. Registration will provide law enforcement with additional information critical to preventing sexual victimization and to resolving incidents involving sexual abuse and exploitation promptly. It will allow them to alert the public when necessary for the continued protection of the community....

"Therefore, this state's policy, which will bring the state into compliance with the federal crime control act ... is to assist local law enforcement agencies' efforts to protect their communities by requiring sex offenders to register and to authorize the release of necessary and relevant information about certain sex offenders to the public as provided in this act." (L 1995, ch 192, § 1.)

In accordance with the Legislature's intent to comply with JWA's mandate, SORA defines "sex offense" to include conviction of or an attempt to commit unlawful imprisonment (Penal Law §§ 135.05, 135.10) and kidnapping (Penal Law §§ 135.20, 135.25) where the victim is less than 17 and defendant is not the victim's parent (Correction Law § 168-a [2] [a] [i]). Sexual contact or motivation is not an element of these crimes.⁸

SORA provides three levels of registration and notification depending on the risk of reoffending. Level one, the lowest level, requires local law enforcement to be notified of an offender's whereabouts (Correction Law § 168-l [6] [a]). Level two is assigned to sex offenders with a moderate risk of committing another sex offense. It allows local law enforcement agencies to disseminate information about an offender to any entity with a vulnerable population. Those entities, in turn, may disclose such information at their discretion. The information includes the name and photograph of the offender, his approximate address and the...