People v. Kennedy

• Decision Date: 06 June 2006
• Parties: The PEOPLE of the State of New York, Respondent, v. Shawn KENNEDY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 661

850 N.E.2d 661

7 N.Y.3d 87

The PEOPLE of the State of New York, Respondent, v. Shawn KENNEDY, Appellant.

Court of Appeals of New York.

June 6, 2006.

Muldoon & Getz, Rochester (Gary Muldoon of counsel), for appellant.

Michael C. Green, District Attorney, Rochester (Margaret A. Jones of counsel), for respondent.

Brenna & Brenna, PLLC, Rochester (Donald G. Rehkopf, Jr., of counsel), for New York State Association of Criminal Defense Lawyers, amicus curiae.

OPINION OF THE COURT

ROSENBLATT, J.

Ten years ago, the Legislature enacted the Sex Offender Registration Act (SORA),¹ which required certain sex offenders to register with the Division of Criminal Justice Services within 10 calendar days after discharge from incarceration, parole or other release (Correction Law § 168-f). The legislation created procedures to weigh the threat posed by the offender's release and classifications geared to the offender's risk level. SORA contemplates three levels of risk, from level one (the lowest) to level three, with reporting requirements increasing for each level (Correction Law § 168-l [6][a]-[c] ). A five-member Board of Examiners of Sex Offenders is charged with the responsibility for developing risk assessment guidelines and recommending to a sentencing court the risk level involved upon the release of an offender (Correction Law § 168-l).

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.² The case before us involves the application of this subsection to defendant's United States Navy court-martial, following which the Board recommended, and County Court determined, that he be classified a level two sex offender under Correction Law § 168-a (2)(d)(ii). We agree with defendant that this determination must be vacated.

Defendant was convicted in 2000 by a general court-martial under a generic provision in the Uniform Code of Military Justice prohibiting, among other things, "all conduct of a nature to bring discredit upon the armed forces" (10 USC § 934). Within the general statutory provision, defendant seems to have been convicted of the specific regulatory offense of "indecent assault." The Navy apparently sentenced defendant to a bad conduct discharge and reduction in pay grade, but no fine or term of imprisonment.³

Because the record in this case is incomplete and sometimes inconsistent, we cannot be certain as to the basis of defendant's conviction. One document before us, apparently from the regional commander, indicates that defendant's conviction was for "indecent assault" under the general provision in 10 USC § 934. The crime has also been described as a lesser-included offense under the military crime of rape (10 USC § 920). Contrastingly, a separate postconviction report from the military prosecutor, closer in time to the trial, suggests that defendant was convicted of ordinary assault (10 USC § 928). Furthermore, we have not been furnished with an authoritative description of the elements of "indecent assault." A single page in the record, neither dated, titled, nor authenticated, purports to list the elements, but does not indicate whether those elements are legally prerequisite to the offense. Nevertheless, for purposes of this decision, we will assume that defendant violated 10 USC § 934, that his crime was indecent assault and that the elements of indecent assault are as described in United States v. Watson, 31 M.J. 49, 53 [CMA 1990]:

"(1) [t]hat the accused assaulted a certain person not the spouse of the accused in a certain manner;

"(2) [t]hat the acts were done with the intent to gratify the lust or sexual desires of the accused; and

"(3) [t]hat, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces ...." (Emphasis omitted.)

The Appellate Division held that the military crime of indecent assault satisfies the requirements in Correction Law § 168-a (2)(d) (ii) (mandating 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"). Even though military law does not classify offenses as felonies or misdemeanors, the Court reasoned that indecent assault is a federal felony and that defendant was required to register as a sex offender with naval authorities. We granted defendant leave to appeal and now reverse.

Correction Law § 168-a (2)(d) specifies particular federal crimes that require registration (see § 168-a [2][d][iii] ); undisputedly, indecent assault is not among them. The section also mandates that the offender register if the crime of conviction in the other jurisdiction "includes all of the essential elements of any such crime provided for" in the statutory sections referring to convictions obtained in New York (§ 168-a [2][d][i] ).

The People have conceded that they are not relying on that subsection, but solely on section 168-a (2)(d)(ii), which provides that an offender must register when 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" (§ 168-a [2][d][ii] ). There are two elements to this 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.

As to the first element, the People argue that indecent assault can result in a sentence of up to five years' imprisonment, and is therefore equivalent to a federal felony (see 18 USC § 3559[a] [4] [labeling crimes punishable by from 5 to just under 10 years' imprisonment class D felonies] ).

Assuming that indecent assault qualifies as a felony within the meaning of our statute, County Court's determination fails because the second element of section 168-a (2)(d)(ii) requires that the conviction result in the offender's obligation to register in the "other jurisdiction," i.e., where defendant was convicted—here, the United States Navy. The People argue that Secretary of the Navy Instruction 5800.14 obligates defendant to register with the Navy. It does not. This "Instruction" is a notification order directed to "All Ships and Stations"; by its own terms, it places responsibility to provide notification not on the offender but on the Assistant Secretary of the Navy (Manpower and Reserve Affairs), the Navy Personnel Command, the Commandant of the Marine Corps, the "Convening Authority or Convening Authority's Designee" for each court-martial, the Naval Criminal Investigative Service and the Judge Advocate General of the Navy.

The People have presented no evidence of any kind suggesting that naval sex offenders must register with the Navy or have any ongoing obligation to keep the Navy informed of their whereabouts once they leave the service. Furthermore, the People have presented no evidence that the Navy or Department of Defense maintains any registry or equivalent database; if there is no registry, there can be no registration and no registrants. Because the People have not shown that defendant ever had any obligation to register with the other jurisdiction, they have not met the second statutory requirement for registration in New York.

On the state of this record, we are unprepared to say whether, in a new proceeding, the People may be able to sustain a declaration that defendant must register in New York. Unless amended, section 168-a (2)(d)(ii) might not apply to any military convictions and we agree with our concurring colleague's suggestion that the Legislature examine the issue. We note, however, that section 168-a (2)(d)(i) remains available (even for military offenders) if the People can prove the crime of conviction in the other jurisdiction includes all of the essential elements provided for in the New York statutes described in that subsection.

The order of the Appellate Division should be reversed, without costs, and defendant's adjudication as a sex offender annulled.

GRAFFEO, J. (concurring).

I agree with the reversal in this case based on a plain language analysis of Correction Law § 168-a (2)(d). But because I do not believe that the Legislature intended to exclude certain military courts-martial premised on sex crimes from the reach of the Sex Offender Registration Act (SORA), I write separately to highlight the need for legislative reconsideration.

The statute at issue—Correction Law § 168-a (2)(d)—designates several categories of New York residents who must register under SORA if they have been convicted of particular crimes in other jurisdictions. Registration is required for enumerated federal offenses (see Correction Law § 168-a [2][d][iii]) and for an offense in another jurisdiction that contains the same "essential elements" as a New York crime that is registerable under SORA (Correction Law § 168-a [2][d][i] ). As the Court notes, neither of these categories is implicated here. Rather, the People claim that defendant is covered by subdivision (2)(d)(ii), which requires registration for "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."

Pursuant to this provision, the crucial inquiry is whether the jurisdiction where defendant was convicted of a felony required registration as a sex offender for that crime. It is apparent from the record in this case that the United States Navy does not have a registry of sex offenders similar to those maintained by the states.¹ Instead, Navy regulations, promulgated under the directives of Congress and the Secretary of Defense (see Pub. L. 105-119, tit. I, § 115[a][8][C], 111 U.S. Stat. 2466), merely require naval personnel to establish a program for notifying a jurisdiction that a discharged individual who...