People v. Diaz

• Decision Date: 13 April 2017
• Docket Number: 99045/15, 2699.
• Citation: 150 A.D.3d 60,50 N.Y.S.3d 388
• Parties: The PEOPLE of the State of New York, Respondent, v. Frederick DIAZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 60

50 N.Y.S.3d 388

The PEOPLE of the State of New York, Respondent,

v.Frederick DIAZ, Defendant–Appellant.

99045/15, 2699.

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

April 13, 2017.

Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Andrew J. Zapata and Nancy Killian of counsel), for respondent.

RICHARD T. ANDRIAS, J.P., KARLA MOSKOWITZ, BARBARA R. KAPNICK, TROY K. WEBBER, MARCY L. KAHN, JJ.

ANDRIAS, J.P.

Pursuant to Correction Law § 168–a(2)(d)(ii), defendant was required to register as a sex offender in New York based on his conviction in Virginia of murder in the first degree of a victim under 15 years of age, even though the crime did not involve any sexual motivation or conduct. For the reasons discussed below, we find that Correction Law § 168–a(2)(d)(ii), as applied under the specific facts of this case, violates defendant's substantive due process rights under the Federal and New York State Constitutions (U.S. Const., Amend XIV, § 1 ; NY Const., art. I, § 6 ), and that his adjudication as a sex offender in New York should be annulled.

On December 22, 1989, defendant, then 19, shot and killed his 13–year–old half sister after she threw out his stash of drugs and reprimanded him about his drug dealing. On May 23, 1990, defendant was convicted in Virginia, upon his plea of guilty, of first degree murder (Va. Code Ann § 18.2–32 ) and using a firearm in the commission of a felony (id. § 18.2–53.1), and sentenced to an aggregate term of 40 years.

On April 13, 2015, defendant was paroled. Although the underlying offenses did not have any sexual component, defendant was required to register in Virginia under its Sex Offender and Crimes Against Minors Registry Act (Va. Code Ann § 9.1–900 et seq. ) solely because his half sister was under 15 years of age when he murdered her (id. § 9.1–902[A][D] ).

Days after his release, defendant moved to the Bronx to live with his father and brother. Defendant's sister, her husband and their son resided in the same apartment building and defendant also had numerous other relatives in New York.

Defendant's murder conviction would not have required registration had the crime had been committed in New York. However, the Board of Examiners of Sex Offenders (Board) required him to register pursuant to Correction Law § 168–a(2)(d)(ii), which mandates registration for those convicted of "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" (emphasis added).

The Board prepared a risk assessment instrument assessing 75 points for defendant. While this would warrant a presumptive risk level two classification, pursuant to the Sex Offender Registration Act (SORA) Risk Assessment Guidelines and Commentary, the Board recommended an automatic override to level three because defendant "inflicted death to the victim." After a hearing, the SORA court found clear and convincing evidence to assess 65 points (presumptively level one) and to impose the automatic override to level three.

The Board's determination that defendant's out-of-state conviction requires registration is reviewable in this risk level proceeding (see People v. Liden, 19 N.Y.3d 271, 946 N.Y.S.2d 533, 969 N.E.2d 751 [2012] ). Because there is no fundamental constitutional right to be free from being stigmatized or branded a sex offender or from having one's reputation impaired, a "rational basis" test (as opposed to "strict scrutiny") is the correct level of review for defendant's claim that Correction Law § 168–a(2)(d)(ii), as applied, violates his substantive due process rights (see People v. Knox, 12 N.Y.3d 60, 68–69, 875 N.Y.S.2d 828, 903 N.E.2d 1149 [2009], cert. denied [2009] ). Thus, we must consider whether requiring defendant to register as a sex offender in New York, based on a conviction of a crime that did not have any sexual component but which required registration in Virginia under a broader statute that covers both sex crimes and crimes against minors, is rationally related to the achievement of some conceivable, legitimate, governmental purpose (id. ).

When SORA was enacted, registration was required only for out-of-state felony convictions with the same essential elements as New York crimes requiring registration (see L. 1995, ch. 192, § 2). In 1999, the legislature added section 168–a(2)(d)(ii) (see L. 1999, ch. 453) to require registration for out-of-state sex offender felonies that have no New York equivalent (see Matter of Kasckarow v. Board of Examiners of Sex Offenders of State of N.Y., 33 Misc.3d 1028, 1035, 936 N.Y.S.2d 498 [Sup.Ct., Kings County 2011], affd. 106 A.D.3d 915, 964 N.Y.S.2d 650 [2d Dept.2013], affd. 25 N.Y.3d 1039, 10 N.Y.S.3d 492, 32 N.E.3d 927 [2015] ). "There are two elements to th[e] subsection: first, the underlying offense must be a felony; second, the offender must be required to register as a sex offender in the other jurisdiction as a result of that conviction" (People v. Kennedy, 7 N.Y.3d 87, 91, 817 N.Y.S.2d 614, 850 N.E.2d 661 [2006] [emphasis added] ).

The People argue that a rational basis underlies the application of section 168–a(2)(d)(ii) to defendant because (i) "[b]y amending the Correction Law to include this provision, the Legislature could have been attempting to prevent New York from becoming a haven for sex offenders escaping registration in foreign jurisdictions by simply moving here," and (ii) "[t]he Virginia legislature could have been concerned with the prevalence of a sexual motivation or component to the murder of children under the age of fifteen." However, defendant's murder of his half sister did not have a sexual component and, most significantly, the New York Legislature has not seen fit to include the murder of a victim under 15 years of age as a crime that, in and of itself, would require registration as a sex offender if committed in New York. Although defendant is required to register in Virginia, the Virginia statute and registry is broader, covering both sex offenses and crimes against minors, and there is no persuasive evidence in the record correlating the murder of a victim under 15 with the propensity to commit sexual offenses. Under these particular circumstances, requiring defendant to register as a sex offender is not rationally related to the protection of the public from sex offenders, or to any other legitimate governmental purpose, and the application of section 168–a(2)(d)(ii) to defendant violates his rights to substantive due process.

In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (JWA) (former 42 U.S.C. § 14071 et seq. ), which required states to adopt registration and community-notification provisions overseeing sex offenders or risk losing federal funds. Although the JWA required registration for "a person who is convicted of a criminal offense against a victim who is a minor" (former 42 U.S.C. § 14071[a][1][A] ), it defined that term as including

"any criminal offense in a range of offenses specified by State law which is comparable to or exceeds the following range of offenses: (i) kidnapping of a minor, except by a parent; (ii) false imprisonment of a minor, except by a parent; (iii) criminal sexual conduct toward a minor; (iv) solicitation of a minor to engage in sexual conduct; (v) use of a minor in a sexual performance; (vi) solicitation of a minor to practice prostitution; (vii) any conduct that by its nature is a sexual offense against a minor; (viii) production or distribution of child pornography ...." (former 42 U.S.C. § 14071[a][3][A][i-viii] ).¹

In 1995, New York enacted SORA (Correction Law § 168 et seq., as added by L. 1995, ch. 192, § 2). Section 1 of the Act, entitled "Legislative purpose or findings" states, among other things, that

"[t]he 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).

Thus, "[t]he primary government interest underlying SORA is protecting vulnerable populations[,] and in some instances the public, from potential harm posed by sex offenders" (People v. Alemany, 13 N.Y.3d 424, 430, 893 N.Y.S.2d 448, 921 N.E.2d 140 [2009] [internal quotation marks omitted] [alteration in original]; see also People v. Mingo, 12 N.Y.3d 563, 574, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] [the purpose underlying SORA is "to protect the public from sex offenders"] ).

In Virginia, the stated purpose of the Sex Offender and Crimes Against Minors Registry Act is "to assist the efforts of law-enforcement agencies and others to protect their communities and families from repeat sex offenders and to protect children from becoming victims of criminal offenders

by helping to prevent such individuals from being allowed to work directly with children" (Va. Code Ann § 9.1–900 [emphasis added] ). To fulfill this broad purpose, the Act creates a registry that requires registration with the Virginia State Police by those convicted of certain sex-related crimes (against both minors and adults) and certain other nonsexual crimes targeted against minors, or those otherwise physically helpless or mentally...