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The defendant was charged with violating N.Y. Correction Law section 168-f(3) duty to register and to verify pursuant to his classification as a class three sex offender. Defendant moves to dismiss people’s charges pursuant to N.Y. Criminal Procedure Law sections 170.30(5) and 170.40 in the interest of justice. A Lawyer said that, the Board of Examiners recommended that the defendant should be classified as a class three sex offender due to the defendant’s prior felony conviction of manslaughter in the First Degree for the burglary and “attacking to death a 79-year old landlord” and the sexual assault committed against a minor, which occurred six months after his release from prison. Based upon the Board’s recommendation, a Nassau Sex Crime Lawyer said that, the Court declared the defendant a class three sex crime offender on August 21, 1996. From that date until the present time, the defendant has been required to appear before the Nassau County Police Department every 90 days to register as a class three sex offender.
A source said that, the defense counsel alleges that from May 13, 1996 until June 13, 2002 the defendant had no contact with the criminal justice system. The defendant acknowledged that he was provided written notice of his May 22, 2002 appointment with the Nassau County Police Department; however, he failed to appear. On June 6, 2002 the defendant reported to the Nassau County Police Department that he did not appear at his May 22, 2002 appointment because he “forgot.” On June 13, 2002, a warrant was issued for the defendant’s arrest for violating Correction Law 168-f(3). On June 13, 2002, the defendant signed a statement attesting to the fact that he knew he was required to verify his address but forgot to appear on May 22, 2002.
The issue in this case is whether an individual who was designated as a class three sex offender and provided notice of his duty to register and verify his address but allegedly forgot and registered 14 days past the ninety-day requirement can nonetheless have his case dismissed in the interest of justice.
Under NY Correction Law section 168-f(3), a sex offender, sexual predator, or a person “having been given a level three designation must personally verify his or her address with the local law enforcement agency every ninety calendar days after the date of release.” This law was promulgated by the legislature as part of the New York’s Sex Offender Registration Act (“SORA,”) or Megan’s law; it is a regulatory law designed to foster and enhance public safety.
The Court held that, to determine whether in the interest of justice a dismissal should be granted, the NY CPL Section 170.40(1) enumerates criteria where the “existence of some compelling factor clearly demonstrating that prosecution of the defendant upon such accusatory instrument would constitute or result in injustice the court must, to the extent applicable, examine and consider, individually and collectively, the following” factors: (a) the seriousness and circumstances of the offense; (b) the extent of harm caused by the offense; (c) the evidence of guilt, whether admissible or inadmissible at trial; (d) the history, character and condition of the defendant; (e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant; (f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense; (g) the impact of a dismissal on the safety or welfare of the community; (h) the impact of a dismissal upon the confidence of the public in the criminal justice system; (I) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; (j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.
In light of this, the Court will address each factors individually and collectively to balance the interests of the defendant with those of the community.
A. The seriousness and circumstances of the offense: Defense counsel claims that during the 14 days where the defendant was late in verifying his address, that the police were not looking for the defendant, that the defendant was arrested only after he voluntarily came forward and registered/verified his address, and that the defendant has been cooperating fully with all law enforcement personnel. The people did not make a reply concerning this point. The defense asserts that defendant has been residing at the same address for the past six years. The people did not make a reply concerning this point. The defense contends that although defendant has been charged with violating N.Y. Correction Law section 168-f(3), he has been “on liberty” during the two years pending trial for this violation. Moreover, the defendant has allegedly not violated the terms of his parole for any other offense, nor has he been incarcerated during this time.
The people reply that the plain language of the N.Y. Correction Law section 168-l(8) establishes that despite the delay in providing a risk level, the convicted sex crime offender is still required to register and verify his address. The plain language of the statute clearly states that even if the Court, state, or board has yet to render a determination, the sex offender is nevertheless required to register and verify his address upon his or her release from jail. In the case at bar, the Court adopted the board’s recommendation to classify the defendant as a class three sex offender on August 21, 1996. Thus, the defendant has been on notice of his duty to register since 1996 that is almost six years before the defendant missed his May 22, 2002 verification date.
B. The extent of harm caused by the offense: Although the defense counsel alleges that no one was injured in the case at bar, the people contend that the Court should evaluate the claim for dismissal on the potential impact that dismissal could have on the safety of the public at large and society’s confidence in the criminal justice system.
The court looked to the legislative intent when it adopted SORA and found that the legislative history of the Act supports the preamble’s characterization of the twin purposes served by the SORA protecting communities by notifying them of the presence of individuals who may present a danger and enhancing law enforcement authorities’ ability to fight sex crimes. Here, although the defendant did not actively injure anyone or anything, his passivity, that is his failure to register, thwarted the twin aims of SORA. This court appreciates the fact that the defendant had timely registered on every other occasion, and voluntarily came forward, albeit late, to register; however, the defendant has failed to raise any argument denial of which would shock the conscious of the Court that would call for a dismissal in the interest of justice.
C. The evidence of guilt, whether admissible or inadmissible at trial: As stated above in part A (3), the defense alleges that the defendant did not commit any crimes between May 22, 2003 and June 6, 2003; however, as the people correctly point out that issue is not before the Court at this time. The only determination this Court can make based upon the papers is that the defendant admitted on June 13, 2002 his knowledge that he was required to report to verify his address with the police, but did not do so.
D. The history, character and condition of the defendant: Defense counsel asserts that the defendant is 66-years-old and for the past six years he has resided at the same address in New York. The defense also claims that prior to his arrest for failing to verify his address in a timely manner, the defendant had no contact with the criminal justice system since he was paroled. However, prior to this incident, the defendant served 12 years in prison for manslaughter in the First Degree for the burglary and “attacking to death a 79-year-old landlord.” While the court recognizes that the defendant has not had any contact with the judicial system since he was last incarcerated, congratulates the defendant on his good behavior, and appreciates the fact that the defendant is 66 years old; nevertheless, the defense has not stated any reason that would shock the conscience of the court if it permitted dismissal of the charges.
E. Any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant: The defense did not make an individual complaint about this issue in their motion for dismissal in the interest of justice.
F. The purpose and effect of imposing upon the defendant a sentence authorized for the offense: The defense claims that incarcerating a 66-year-old man for violating the registration and verification of address requirements would be more detrimental to the defendant than beneficial to the community; however, the defense does not state why it would be more detrimental to the defendant than beneficial to the community. The defendant is unemployed; additionally, defense counsel did not file any supporting documentation asserting that his incarceration would be detrimental to his family or from any other individuals in support of his claim for dismissal in the interest of justice. The people allege that “New York law traditionally recognizes that once a person enters the criminal justice system, it is appropriate to place special responsibilities upon that person and to impose strict liability for any violation of those responsibilities.” In the case at bar, defendant’s failure to verify his address is a strict liability crime.
G. The impact of a dismissal on the safety or welfare of the community: The defense alleges that no person or property was injured by his failure to register and that the defendant had verified his address but was only arrested some seven days later. However, the defendant admitted that he knew that he was required to register and failed to do so. In the case at bar, the defendant has not provided the Court with any exigent circumstances warranting a deviation from the above.
H. The impact of a dismissal upon the confidence of the public in the criminal justice system: The defense concedes that the public retains an interest in the registration of class three sex offenders; however, it urges the Court to depart from earlier jurisprudence and claims that “it should not follow that all incidents should be prosecuted with equal vigor and that a dismissal here would not undermine the confidence of the public in the criminal justice system.” The people submit that “all occurrences of failure-to-register sex crimes require mandatory and uniform prosecution.” The Court recognizes the need to look at each and every case individually, and refuses to place a blanket over all failure-to-register cases by deeming them all automatic violations. Moreover, there may yet one day be a reason to grant a motion to dismiss in the interest of justice; however, in this instance, the defense has not provided such a reason.
I. Where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion: The defendant did not discuss this issue in his motion for dismissal in the interest of justice.
As discussed above, no exigent circumstances presented by the defense create an overriding moral issue that would necessitate the Court to grant a dismissal in the interest of justice. Therefore, the Court held that defendant’s motion to dismiss is denied.
If a sex offender fails to register or verify in a timely fashion, then according to NY Correction Law. ยง 168-t, the sex offender shall be shall be guilty of a class A misdemeanor upon conviction for the first offense. If you have been convicted of a sex crime, and were mandated to register under SOLA, you will need the assistance of a Nassau Sex Crime Attorney and Nassau Criminal Attorney to explain to you the process of registration. Call us at Stephen Bilkis and Associates.