Crimes - Sex Offenders - Sex Offender Registration Act - Sexually Violent Offender Designation for Out-of-State Conviction - Constitutionality of Foreign Registration Clause as Applied to Nonviolent Crimes

Gregory V. Canale, Public Defender (Erin K. Komon of counsel), for defendant.

Jason M. Carusone, District Attorney (Robert P. McCarty of counsel), for the People.

{**88 Misc 3d at 332}On August 8, 2022, in Sarasota County, Florida, the above-named defendant, Kyle Schultz, was convicted by a plea of guilty of three counts of possession of a sexual performance by a child in violation of Florida Statutes § 827.071 (5). The defendant was sentenced on each of those counts to 30 days in jail and 36 months' probation, to be served concurrently. On September 7, 2022, the New York State Board of Examiners of Sex Offenders (hereinafter BESO) was notified that the defendant's supervision had been transferred to New York State due to the defendant residing in Brant Lake, New York, in Warren County. As a result of now living in the State of New York, as well as the nature of his Florida convictions, the defendant was required to register as a sex offender pursuant to the New York State Sex Offender Registration Act (hereinafter SORA).

On January 30, 2023, the defendant appeared in Warren County Court with his attorneys for a formal sex offender risk assessment hearing held in accordance with Correction Law article 6-C. The People introduced three exhibits into evidence at the hearing and the defendant introduced two exhibits. The People did not call any witnesses to testify. The defendant did not testify, but the defense called one witness, Dr. Morgan, who did testify. While the parties made arguments regarding the assignment or non-assignments of points under various risk factors and argued in support of their respective requests for upward and downward departures, neither party [*2]addressed whether the defendant was required to be designated a sexual predator, sexually violent offender, or predicate sex offender. Pursuant to Correction Law § 168-k (2), however, this court was required to make a determination regarding the applicability of a designation, if any. Ultimately, on February 27, 2023, this court issued a decision and order classifying/designating the defendant a level two sexually violent offender.

The defendant appealed this court's determination to the Supreme Court, Appellate Division, Third Department (hereinafter Third Department), and on January 16, 2025, the Third Department vacated the defendant's designation as a sexually violent offender and remitted the matter to this court to provide the defendant with an additional opportunity to raise the constitutional objections which he raised for the first time on appeal (i.e., violations of substantive due process, equal protection, privileges and immunities). (People v Schultz, 234 AD3d 1143 [3d Dept 2025].) The defendant's classification as a level two sex offender was otherwise affirmed. (Id.){**88 Misc 3d at 333}

The Third Department's decision to remit this case for further proceedings before this court was done on procedural due process grounds. The Third Department observed that although this court was "required by law to designate defendant a sexually violent offender" due to his conviction of a felony in another jurisdiction for which he was required to register as a sex offender, the fact that Correction Law § 168-a (3) (b) would, under such circumstance and without any objection by the defendant, require his designation as a sexually violent offender despite neither the BESO or the People raising this topic presented an issue of procedural due process which the Third Department sought to redress by way of remittal. (Id. at 1145 [emphasis added]; see also People v Talluto, 39 NY3d 306, 315-316 [2022] ["the decision whether to designate a defendant a sexually violent offender is not a matter with respect to which the adjudicating court may exercise discretion . . . The court is bound by the statute"]; Correction Law § 168-a [3] [b]; [7] [b].) More specifically, the Third Department expressly stated that "[a]lthough the court appropriately concluded that the foreign registration clause compelled it to designate defendant a sexually violent offender, the court erred when it failed to provide defendant with notice and an opportunity to be heard on his designation before issuing a determination." (People v Schultz, 234 AD3d at 1146 [citation omitted].) The Third Department's rationale for this conclusion was that since neither the BESO or the People requested this court to designate the defendant a sexually violent offender, and since the defendant's designation was not mentioned at the SORA hearing, this court failed to provide the defendant with "notice and an opportunity to be heard on his designation before issuing a determination." (Id.)

This court takes umbrage with that assertion for two reasons. First, the New York State Correction Law is published in print and various online sources for attorneys and lay persons to utilize in preparing for court proceedings. As the Court of Appeals in Talluto recognized, whether or not to designate the defendant a sexually violent offender is not a decision in which this court can exercise discretion; instead, this court is required by Correction Law § 168-k (2) to render such determination as part of the SORA hearing process. Thus, by virtue of the nature of the proceeding itself, the parties in this matter, licensed and experienced attorneys, were well placed on notice that such a determination must be rendered by this{**88 Misc 3d at 334} court. [*3]Secondly, pursuant to the attached email with attached notice,^[FN1] the parties were advised on October 13, 2022, that part of the November 17, 2022 SORA hearing would involve determining the defendant's designation, if any. That hearing ultimately was adjourned and did not occur until January 30, 2023, thus providing the parties additional time to prepare any arguments, constitutional or otherwise, that they may wish to make at the SORA hearing. This court understands its October 13, 2022 scheduling notice was not contained in the record on appeal or brought to the attention of the Third Department. However, the fact remains that despite the parties to this matter being given ample notice and opportunity to be heard regarding the defendant's designation, such opportunity was squandered. While this court cannot divine the reason why the defendant failed to raise his constitutional objections during the SORA hearing, this court firmly believes that since the BESO, ostensibly intentionally,^[FN2] failed to note the applicability of the foreign registration clause within their sex offender designation form, this issue was forgotten by the parties and never again addressed until it was raised on appeal.{**88 Misc 3d at 335}

Upon remittal this court scheduled a conference with the parties whereby the parties sought to submit written submissions regarding the defendant's designation, if any, and to allow for the defendant to serve the New York State Office of the Attorney General with a copy of such submission in light of the fact that the defendant intended to challenge the constitutionality of the Correction Law § 168-a (3) (b) foreign registration clause. The parties also agreed that subsequent to the receipt of their written arguments the matter would be scheduled for oral [*4]argument for the parties to further develop the record as they saw fit. On February 11, 2025, the defendant filed his written submission. The New York State Office of the Attorney General was also provided with a copy of the same pursuant to CPLR 1012 (b). On March 5, 2025, the New York State Office of the Attorney General advised that it was not, at that time, seeking to intervene. The People filed their submission on March 14, 2025. Oral argument then occurred in this matter on May 22, 2025.

Pursuant to Correction Law § 168-k (2), it is

"the duty of the court applying the guidelines established in subdivision five of section one hundred sixty-eight-l of this article to determine the level of notification pursuant to subdivision six of section one hundred sixty-eight-l of this article and whether such sex offender shall be designated a sexual predator, sexually violent offender, or predicate sex offender as defined in subdivision seven of section one hundred sixty-eight-a of this article." (Emphasis added.)

A " '[s]exually violent offender' means a sex offender who has been convicted of a sexually violent offense defined in subdivision three of this section." (Correction Law § 168-a [7] [b].) As is pertinent here, a

" '[s]exually violent offense' means . . . a conviction of an offense in any other jurisdiction which includes all of the essential elements of any such felony provided for in paragraph (a) of this subdivision or conviction 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." (Correction Law § 168-a [3] [b].){**88 Misc 3d at 336}

On August 8, 2022, the defendant pleaded guilty in Florida to three counts of possession of a sexual performance by a child in violation of Florida Statutes § 827.071 (5). (People's exhibit 2.) The defendant was required to register as a sex offender in the State of Florida as a result of these convictions.

The defendant herein has objected to being designated a sexually violent offender under either the essential elements test and/or the foreign registration clause, both as contained within Correction Law § 168-a (3) (b). He has further challenged the constitutionality of the foreign registration clause as applied to himself in violation of his substantive due process rights, the Privileges and Immunities Clause, and the Equal Protection Clause. The defendant has also challenged the facial constitutionality of the foreign registration clause.

Essential Elements Test

Both Correction Law § 168-a (2) (d) (i) and (3) (b) contain essential elements provisions by which individuals now living in New York who have been convicted of certain crimes in foreign jurisdictions are required to register as sex offenders and/or sexually violent offenders, respectively. Correction Law § 168-a (2) (d) (i) provides that a person has been convicted of a sex offense requiring sex offender registration in New York if the conviction is for "an offense in any other jurisdiction which includes all of the essential elements of any such crime provided for in [Correction Law § 168-a (2)] (a), (b) or (c)." Correction Law § 168-a (3) (b) provides that a person has been convicted of a sexually violent offense requiring designation as a sexually violent offender in New York if the conviction is for "an offense in any other jurisdiction which includes all of the essential elements of any such felony provided for in [Correction Law § 168-a (3) (a)]."

The Court of Appeals noted that

"[s]ince the inception of SORA in 1995, a person convicted of a felony in another jurisdiction, including conviction of a federal crime, has been subject to registration in New York if the foreign offense 'includes all of the essential elements' of one of the New York offenses listed in SORA." (Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745, 748-749 [2007].)

However, the Court of Appeals in North noted that their 2007 decision was their first opportunity since the inception of SORA for them to interpret the essential elements provision. (Id. at{**88 Misc 3d at 337} 749.) Within their analysis the Court of Appeals noted that they were "unpersuaded that the Legislature intended that the SORA 'essential elements' inquiry involve[d] the same strict equivalency approach used in the criminal enhanced sentencing context." (Id. at 751.) In reaching that conclusion the Court observed that "SORA is not a penal statute and the registration requirement is not a criminal sentence." (Id. at 752.) Instead, they noted that "SORA is a remedial statute intended to prevent future crime; its aim is to protect communities by notifying them of the presence of individuals who may present a danger and enhancing law enforcement authorities' ability to fight sex crimes." (Id. [citation, brackets, and internal quotation marks omitted].) "As opposed to the penal purposes of enhanced sentencing, the ultimate and paramount concern of the SORA risk-level assessment is an accurate determination of the risk a sex offender poses to the public." (People v Perez, 35 NY3d 85, 94 [2020] [internal quotation marks omitted].) "Thus, SORA's remedial purposes underlie both the initial registration determination and the secondary risk assessment level determination bearing on the frequency of registration and degree of community notification required." (Id.) Pursuant to the Correction Law, this would include reaching a determination on whether or not a designation is applicable, thus requiring lifetime registration.

"[T]he 'essential elements' provision in SORA requires registration whenever an individual is convicted of criminal conduct in a foreign jurisdiction that, if committed in New York, would have amounted to a registrable New York offense." (Matter of North v Board of Examiners of Sex Offenders of State of N.Y. at 753.) Application of this principle "necessarily requires that the Board compare the elements of the foreign offense with the analogous New York offense to identify points of overlap." (Id.) "When the Board finds that the two offenses cover the same conduct, the analysis need proceed no further for it will be evident that the foreign conviction is the equivalent of the registrable New York offense for SORA purposes." (Id.)

"In circumstances where the offenses overlap but the foreign offense also criminalizes conduct not covered under the New York offense, the Board must review the conduct underlying the foreign conviction to determine if that conduct is, in fact, within the scope of the New York offense. If it is, the foreign conviction is a registrable offense under{**88 Misc 3d at 338} SORA's essential elements test." (Id.; see also People v Perez, 35 NY3d 85 [2020].)

Logic dictates that the SORA courts are required to undertake this same analysis.

More recently the Fourth Department has issued decisions illustrating that this application of the essential elements test is applied in the same manner with respect to determining whether a New York domiciliary convicted of a registerable sex offense in a foreign jurisdiction must be designated a sexually violent offender pursuant to Correction Law § 168-a (3) (b). (See People v Cremeans, 194 AD3d 1369 [4th Dept 2021]; People v Morgan, 213 AD3d 1244 [4th Dept 2023].)

Pursuant to Correction Law § 168-a (3) (b), a " '[s]exually violent offense' means . . . a conviction of an offense in any other jurisdiction which includes all of the essential elements of any such felony provided for in paragraph (a) of this subdivision." (Correction Law § 168-a [3] [b].) Correction Law § 168-a (3) (a) provides that a

" '[s]exually violent offense' means: (a) (i) a conviction of or a conviction for an attempt to commit any of the provisions of . . . section 130.35, former section 130.50, sections 130.65, 130.66, 130.67, 130.70, 130.75, 130.80, 130.95 and 130.96 of the penal law, or (ii) a conviction of or a conviction for an attempt to commit any of the provisions of [*5]sections 130.53, 130.65-a and 130.90 of the penal law, or (iii) a conviction of or a conviction for an attempt to commit any provisions of the foregoing sections committed or attempted as a hate crime defined in section 485.05 of the penal law or as a crime of terrorism defined in section 490.25 of such law."

I. Possession of a Sexual Performance by a Child

With respect to the defendant's three convictions for possession of a sexual performance by a child pursuant to Florida Statutes § 827.071 (5) (a):

"It is unlawful for any person to knowingly possess, control, or intentionally view a photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child. The possession, control, or intentional viewing of each such photograph, motion picture, exhibition, show, image, data, computer depiction, representation, or{**88 Misc 3d at 339} presentation is a separate offense. If such photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation includes sexual conduct by more than one child, then each such child in each such photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation that is knowingly possessed, controlled, or intentionally viewed is a separate offense. A person who violates this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084."

" 'Deviate sexual intercourse' means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva." (Fla Stat § 827.071 [1] [a].) " 'Performance' means any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience." (Fla Stat § 827.071 [1] [c].)

" 'Sexual conduct' means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed." (Fla Stat § 827.071 [1] [h].)

" 'Sexual performance' means any performance or part thereof which includes sexual conduct by a child of less than 18 years of age." (Fla Stat § 827.071 [1] [i].) " 'Child' means any person under the age of 18 years." (Fla Stat § 827.01 [2].)

With this foundational understanding of the elements of the crime to which the defendant pleaded guilty, this court, pursuant to People v Cremeans and People v Morgan, must compare the elements of this Florida offense with any analogous New York offense(s) pursuant to Correction Law § 168-a (2) (a)-(c) and (3) (a) (i) to identify points of overlap. The defendant's conviction for possession of a sexual performance by a child pursuant to Florida Statutes § 827.071 (5) (a) is fairly characterized as the possession of child pornography. As such, this court will begin its comparison by analyzing the analogous{**88 Misc 3d at 340} New York offenses of possessing an obscene sexual performance by a child in violation of Penal Law § 263.11 and possessing a sexual performance by a child in violation of Penal Law § 263.16. This court notes that these two offenses are defined as sex offenses, not sexually violent offenses, pursuant to the Correction Law. (See Correction Law § 168-a [2] [a] [i].)

Pursuant to Penal Law § 263.11, a

"person is guilty of possessing an obscene sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control, or knowingly accesses with intent to view, any obscene performance which includes sexual conduct by a child less than sixteen years of age."

Pursuant to Penal Law § 263.16, a "person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control, or knowingly accesses with intent to view, any performance which includes sexual conduct by a child less than sixteen years of age."

" 'Obscene sexual performance' means any performance which, for purposes of section 263.11 of this article, includes sexual conduct by a child less than sixteen years of age or, for purposes of section 263.10 of this article, includes sexual conduct by a child less than seventeen years of age, in any material which is obscene, as such term is defined in section 235.00 of this chapter." (Penal Law § 263.00 [2].)

"Any material or performance is 'obscene' if (a) the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex, and (b) it depicts or describes in a patently offensive manner, actual or simulated: vaginal sexual contact, a crime under the former sections 130.50, 130.45, and 130.40 of the penal law, oral sexual contact, anal sexual contact, sexual bestiality, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals, and (c) considered as a whole, it lacks serious literary, artistic, political, and scientific value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the{**88 Misc 3d at 341} circumstances of its dissemination to be designed for children or other especially susceptible audience." (Penal Law § 235.00 [1].)

" 'Sexual conduct' means actual or simulated vaginal sexual contact, oral sexual contact, anal sexual contact, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals." (Penal Law § 263.00 [3].) " 'Performance' means any play, motion picture, photograph or dance. Performance also means any other visual representation exhibited before an audience." (Penal Law § 235.00 [4].)

This court observes that there is considerable overlap between the Florida offense of possession of a sexual performance by a child and the New York offense of possessing a sexual performance by a child. The only discord between the two statutes is that the Florida statute actually criminalizes the possession of child pornography depicting an individual as old as 17 years of age, whereas the New York statute has an age ceiling of 15 years old. As "the offenses overlap but the foreign offense also criminalizes conduct not covered under the New York offense, [this court] must review the conduct underlying the foreign conviction to determine if that conduct is, in fact, within the scope of the New York offense." (People v Morgan at 1245.) Here, the defendant was convicted of possessing videos on his computer hard drive which he downloaded from the Internet which depicted a female child, approximately 8-11 years of age, engaged in various acts of sexual conduct. (People's exhibit 1.) As the age of the child depicted in the video violates both the Florida statute as well as the New York statute the essential elements test is satisfied and the defendant has thus been convicted of three Florida felonies, the conduct of which constitutes sex offenses pursuant to Correction Law § 168-a (2) (d) (i). The Florida statute does not, however, have an analogous New York offense which is defined as a sexually violent offense pursuant to Correction Law § 168-a (3) (a) (i).

Foreign Registration Clause Contained within Correction Law § 168-a (3) (b)

I. Defendant's As-Applied Due Process Challenge

The defendant has challenged the second disjunctive clause contained within the foreign registration clause (i.e., Correction Law § 168-a [3] [b]) as unconstitutional as applied to the defendant alleging that it violates (i) his substantive due process rights, (ii) the Privileges and Immunities Clause, and (iii) the Equal Protection Clause. Separate and apart from the defendant's{**88 Misc 3d at 342} "as-applied" challenge, the defendant has moved this court to find that the foreign registration clause is facially unconstitutional in that it bears no rational relationship to a legitimate governmental purpose under any conceivable set of circumstances.

The New York State Court of Appeals held that the foreign registration clause requires that an offender convicted of a felony in another state for which sex offender registration is required who moves into New York State be designated a sexually violent offender regardless of whether the underlying offense is violent in nature. (See People v Talluto, 39 NY3d 306, 309 [2022].) "[T]he decision whether to designate a defendant a sexually violent offender is not a matter with respect to which the adjudicating court may exercise discretion . . . The court is bound by the statute." (Id. at 315.) Because it was not preserved for appeal, however, the Court of Appeals expressly noted that it was not addressing the merits of any amici briefs questioning the constitutionality of the foreign registration clause. (Id.) This issue is directly raised by the defendant in this case, however.

"Under the Fourteenth Amendment to the United States Constitution, a state government may not deprive an individual of life, liberty, or property, without due process of law." (People v Malloy, 228 AD3d 1284, 1287 [4th Dept 2024] [citations and internal quotation marks omitted].)

"Due process review generally is comprised of two distinct analyses: procedural due process, the bedrock of which is notice and an opportunity to be heard, and substantive due process, i.e., the right to be free from certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them." (Id. [citations and internal quotation marks omitted].)

"As the term implies, an as-applied challenge calls on the court to consider whether a statute can be constitutionally applied to the defendant under the facts of the case." (People v Brown, 41 NY3d 279, 284 [2023], quoting People v Stuart, 100 NY2d 412, 421 [2003].)

Substantive due process "protects against government action that is arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against government action that is incorrect or ill-advised." (Malloy at 1287 [citation and internal quotation marks omitted].){**88 Misc 3d at 343}

"Substantive due process provides heightened protection against government interference with certain fundamental rights and liberty interests . . . , namely those rights and interests that are deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." (Id. [citations and internal quotation marks omitted].)

As in Malloy, this court, too, finds that the defendant's constitutional claims are subject to rational basis review. (Id. at 1288.)

The rational basis test "involves a strong presumption that the challenged legislation is valid, and a party contending otherwise bears the heavy burden of showing that a statute is so unrelated to the achievement of any combination of legitimate purposes as to be irrational." (Id. [citation and internal quotation marks omitted].) "[A] challenged statute will survive rational basis review so long as it is rationally related to any conceivable legitimate State purpose . . . and courts may even hypothesize the Legislature's motivation or possible legitimate purpose." (Id. [brackets and internal quotation marks omitted].)

Here, the People have satisfied their burden of proving, by clear and convincing evidence, that the defendant was convicted of three counts of possession of a sexual performance by a child in violation of Florida Statutes § 827.071 (5), felonies in the State of Florida for [*8]which Florida requires sex offender registration. (See Fla Stat § 943.0435 [1] [h] [1] [a] [I].) Thus, pursuant to {**88 Misc 3d at 344}Correction Law § 168-a (3) (b), the defendant must be designated a sexually violent offender unless the defendant can satisfy his burden of proving that the statute is so unrelated to the achievement of any combination of legitimate purposes as to be irrational. Under People v Knox (12 NY3d 60, 66 [2009]), the defendant has a constitutionally-protected liberty interest for purposes of substantive due process in not being required to register under an incorrect label. (See also People v Brown, 41 NY3d 279, 285 [2023].)

The defendant sought to satisfy his burden by relying heavily upon the Court of Appeals determination in People v Brown (41 NY3d 279 [2023]). In Brown, the defendant was convicted of the New York felony of unlawful imprisonment in the first degree in violation of Penal Law § 135.10. Pursuant to Correction Law § 168-a (2) (a) (i), such crime was deemed a sex offense for which SORA registration was required. (Id.) The SORA court, feeling "constrained by state law," designated the defendant a level one sex offender despite the People conceding, and the court specifically finding, that the "defendant's sole motivation was to steal money and that the offense involved no sexual contact or motivation." (Id. at 282-283 [internal quotation marks omitted].) The Court of Appeals ultimately reversed the SORA court's determination and vacated the defendant's designation as a sex offender, finding that, as applied to the defendant,"application of SORA's sex offender designation and registration requirement to defendant is a clear violation of his due process rights." (Id. at 300.) The rationale for that holding was that the mislabeling of the defendant as a sex offender for a conviction which was entirely unrelated to any sexual activity or threat of sexual activity was an as-applied violation of the defendant's due process rights. (Id.)

Here, the defendant argues that he is being mislabeled as a sexually violent offender. This court agrees. Similar to the Fourth Department cases cited by SORA-counsel, the BESO did not recommend the assignment of points under risk factor 1 for use of violence, nor did the People advocate for the assignment of points under such risk factor. (See People v Brightman, 230 AD3d 1527, 1530 [4th Dept 2024]; People v Malloy, 228 AD3d 1284, 1286 [4th Dept 2024]; People v Cromwell, 229 AD3d 1176, 1177 [4th Dept 2024]; People v Zellefrow, 229 AD3d 1069, 1070 [4th Dept 2024].) As such, this court did not assign any points under risk factor 1 when it issued its February 27, 2023 decision and order. When analyzing this case in the manner in which the Court of Appeals did in Brown, the factual conduct committed by the defendant does not support the labeling of the defendant as a sexually violent offender. While this court agrees with the People that the undisputed content of the videos possessed by the defendant depicts heinous sexual acts which constitute sexually violent offenses as defined by New York law, the record is clear in this matter that the defendant was not the person physically committing the abuse against the minor(s) depicted in the videos. Instead, the defendant possessed these videos, ostensibly for his sexual gratification, and the New York State Legislature has deemed the possession of child pornography, regardless of the content thereof, a sex offense, and not a sexually violent offense. Thus,{**88 Misc 3d at 345} under the lens of Brown the defendant would be factually mislabeled if designated a sexually violent offender, and the community would be misled by the defendant's designation as such.

Accordingly, the defendant has satisfied his burden of proving that, as applied to himself, the foreign registration clause is so unrelated to the achievement of any combination of legitimate purposes as to be irrational. In light of this determination, the defendant's as-applied challenge to the foreign registration clause on equal protection grounds has been rendered academic.

II. Facial Constitutionality

"[A] facial constitutional challenge under the Due Process Clause must fail so long as there are circumstances under which the challenged provision could be constitutionally applied." (People v Malloy, 228 AD3d 1284, 1291 [4th Dept 2024] [citation and internal quotation marks omitted].) "In other words, the challenger must establish that no set of circumstances exists under which the statute would be valid." (Id. [citations and brackets omitted].) The Malloy Court did "not believe that the sexually violent offenses identified in section 168-a (3) (a) (i) comprise the entire universe of sex crimes that could be deemed sexually violent in nature," and further held that for an offender convicted of such an offense, "the lifetime registration requirement associated with the designation of sexually violent offender would bear a rational relationship to the governmental interest of protecting the public from potential harm by sex offenders, thereby defeating a facial challenge to the statute." (Id. at 1292.) Thus, the foreign registration clause has been held facially constitutional. (Id.; see also People v Cromwell, 229 AD3d 1176, 1178; People v O'Keefe, 86 Misc 3d 1210[A], 2025 NY Slip Op 50909[U], *25-28 [Warren County Ct 2025].)

III. Privileges and Immunities Clause

"[T]he Privileges and Immunities Clause (US Const, art IV, § 2) . . . was intended to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned." (People v Malloy, 228 AD3d 1284, 1292 [4th Dept 2024] [brackets and internal quotation marks omitted].) Just as the Court in Malloy observed, this court also finds that the foreign registration clause "does not discriminate unfairly on the basis of state citizenship; instead, it draws its distinctions{**88 Misc 3d at 346} based on the location of an offender's illegal conduct." (Id.; see also People v Cromwell, 229 AD3d 1176, 1178 [4th Dept 2024] [finding the defendant's Privileges and Immunities Clause challenge to the foreign registration clause lacked merit]; People v Boldorff, 235 AD3d 1274, 1276 [4th Dept 2025] [finding the defendant's Privileges and Immunities Clause challenge to the foreign registration clause lacked merit].) Indeed, "New York is treating [this] defendant in exactly the same way that it would be statutorily authorized to treat a New York resident who committed the same sex crime while visiting Kansas." (Malloy at 1292.)

Accordingly, the defendant's as-applied challenge regarding the Privileges and Immunities Clause is without merit and denied.

Crimes of Conviction Carry Lifetime Sex Offender Registration in Florida

The People raised the argument that the defendant's convictions require lifetime sex offender registration in the State of Florida and that application of New York's foreign registration clause would provide the mechanism for ensuring lifetime registration of the defendant in New York. (See Fla Stat § 943.0435 [11].) The Florida registration statute, however, contains exceptions applicable to the defendant's convictions which permit the defendant to petition the court for the removal of the requirement to register as a sex offender. (Id.) Such statute does not have a New York corollary; thus once an offender is deemed to be a sexually violent offender in New York that designation has no mechanism in the law for removal.

The People have argued that a legitimate purpose achieved by this statute is to ensure that [*10]New York State does not become a state that convicted sex offenders from other states flock to in order to enjoy less onerous and/or shorter terms of sex offender registration/supervision than the supervision terms they are subject to in the state where their offense was committed. In the context of a case such as this, however, where the defendant's crimes of conviction do not constitute sexually violent offenses under the essential elements test, nor do they involve any acts of violence actually perpetrated by the defendant, such an argument is better advanced in the context of a request for an upward departure than for the applicability of a designation.{**88 Misc 3d at 347}

That the defendant's crimes of conviction carry with them a term of lifetime sex offender registration which may only be terminated by vacatur of conviction or by a successful motion for removal from registration in the state of conviction, coupled with the crimes of conviction not constituting sexually violent offenses under the New York essential elements test, nor involving factually violent behavior, could arguably constitute an aggravating circumstance not adequately taken into consideration by the guidelines. (See People v Gillotti, 23 NY3d 841 [2014].) Raising such an argument for an upward departure, and the court granting such a request, would ensure that the sex offender not be classified a level one sex offender whereby the sex offender's termination from sex offender registration would occur without authorization from the court. Pursuant to Correction Law § 168-o (2), as soon as a defendant's risk level classification is determined the defendant may thereafter, annually, file a petition for the downward modification of his sex offender level. Were such petition(s) granted and the defendant's risk level modified downward to a risk level one (or initially set at a level one), his sex offender registration would then end after 20 years. (See Correction Law § 168-h [1].) Instead, asserting the instant argument regarding lifetime supervision in the state of conviction as a basis for an upward departure, or in opposition to a petition for a downward modification pursuant to Correction Law § 168-o, if successful, could ensure that the defendant's sex offender registration requirement not be terminated without court involvement. Indeed, logic would dictate that a defendant who moves to New York should not be discharged from sex offender registration earlier than his sex offender registration is terminated in the state of conviction.

Obtaining Pertinent and Complete Records from Other States

While this court does not agree with the People's argument herein that difficulty in obtaining out-of-state records justifies designating all sex offenders moving to New York as sexually violent offenders, the dismissive nature with which this argument was met by the Fourth Department warrants discussion.

While the Fourth Department may opine that information pertaining to sex offenders freely and easily flows across state lines, the practical reality known by the boots-on-the-ground practitioners routinely handling these matters is that the information provided to the BESO is often incomplete or lacking. Moreover, the parties seeking to obtain information from out-{**88 Misc 3d at 348}of-state agencies often experience difficulties with subpoena compliance or delay related thereto, and all the while the particular defendant remains living within New York State unclassified, undesignated, and without any community notification occurring.

Further obfuscating the ability of the parties to obtain pertinent documentation relating to an out-of-state sex offender is the amount of time which may have passed since the conviction was obtained. If a carceral sentence were imposed in the state of conviction the sex offender would not even be eligible to be classified/designated in New York until after completion of that sentence, however long that may be. Then, classification and designation in New York would [*11]only occur after that individual moved to New York. Accordingly, by way of example, if an offender received a 10-year prison sentence in a foreign state, served that sentence and remained living in the foreign state for another 10 years, and only then decided to move to New York, the parties to the New York SORA hearing would be tasked with obtaining records from 20 years earlier. The nature and quality of the records that may exist after that length of time, while speculative, is unlikely to be the same as it would be closer in time to when the conviction occurred. And while the same may be true with respect to New York sex offenders reentering the community after lengthy prison sentences, an important difference is that New York prosecutors are familiar with the different types of New York agencies possessing documentation pertinent to a SORA hearing, and those New York prosecutors would be in possession of their own file, documentation, and evidence pertaining to the underlying offense. In the context of out-of-state offenders, New York prosecutors are much less likely to have a Rolodex of the pertinent entities in each and every state which may have relevant information for SORA purposes. Further, New York prosecutors are unlikely to even know the correct names or titles of the documentation they may be seeking, given that different states refer to their legal documentation by different names. Were every shred of documentation saved in an easily transmittable form, in perpetuity, for every sex offense matter just in case an offender moved to another state then the opinion of the Fourth Department would be understandable. Such an opinion, however, is not the reality facing the SORA courts and the parties practicing before them.{**88 Misc 3d at 349}

The BESO's Failure to Denote Correction Law § 168-a (3) (b)

Despite the BESO noting in their case summary that the defendant was convicted of a Florida felony offense that requires sex offender registration in the State of Florida, the BESO, apparently intentionally, failed to check the sexually violent offender box along with the line denoting the reason for such designation where it is already pre-filled stating, "A . . . conviction of a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction which the conviction occurred." While this court well understands that the risk assessment instrument (RAI) and content of the case summary provided by BESO is a recommendation, one is still left to speculate as to why the BESO, despite acknowledging the defendant's conviction of a registerable felony in another state within the case summary, failed to indicate the possible applicability of the foreign registration clause on their sex offender designation form when this court's determination of the sex offender's designation, if any, is mandatory. (See Correction Law § 168-k [2] ["It shall be the duty of the county court or supreme court in the county of residence of the sex offender, applying the guidelines established in subdivision five of section one hundred sixty-eight-l of this article, to determine the level of notification pursuant to subdivision six of section one hundred sixty-eight-l of this article and whether such sex offender shall be designated a sexual predator, sexually violent offender, or predicate sex offender as defined in subdivision seven of section one hundred sixty-eight-a of this article"] [emphasis added].)

Indeed, between this case and the many others cited within the instant decision it appears that the BESO's failure to note the applicability of the foreign registration clause is intentional, as opposed to a mere oversight. (See People v Malloy, 228 AD3d 1284 [4th Dept 2024]; People v Brightman, 230 AD3d 1527 [4th Dept 2024]; People v Cromwell, 229 AD3d 1176 [4th Dept 2024]; People v Talluto, 39 NY3d 306 [2022]; People v O'Keefe, 86 Misc 3d 1210[A], 2025 NY Slip Op 50909[U] [Warren [*12]County Ct 2025].) One can only opine as to what other information, if any, the BESO is selectively not bringing to the attention of the courts, the parties, and the defendants. While this court understands that the BESO is tasked with making a recommendation to the court and that a recommendation inherently involves the exercise of subjective discretion, the instant case illustrates how the BESO's ostensible intentional failure to{**88 Misc 3d at 350} bring to the attention of the defendant the applicability of the foreign registration clause for the parties to vet in the context of the SORA hearing may bring with it the unintended consequence of an as-applied challenge to an otherwise mandatory imposition of the sexually violent offender designation failing to be raised.

Interest in Not Being Mislabeled

A final point which warrants discussion in the context of this proceeding is how the "stigma of . . . misdesignation unconstitutionally impacts defendant's liberty interest in a criminal designation that rationally fits his conduct and public safety risk." (People v Brown, 41 NY3d 279, 290 [2023].) While this court has concluded above that designating this defendant a sexually violent offender mislabels him due to the fact that his underlying offense did not involve violence, this court observes that mislabeling occurs in a number of contexts within the Penal Law and Correction Law.

Many of the "sexually violent offenses" listed within Correction Law § 168-a (3) (a) may be factually committed without the use of violence. Nonetheless, the legislature deemed those enumerated offenses, including attempts to commit those offenses, per se sexually violent requiring designation and lifetime registration. Penal Law § 70.02 (1) (a)-(d) also sets forth a number of crimes deemed to be per se violent felony offenses despite the factual content underlying them potentially involving no actual violence at all. As the People note, the Third Department has sanctioned the legislature's selection and designation of certain crimes as violent felonies regardless of whether violence was factually used. (See People v Johnson, 38 AD3d 1057, 1059 [3d Dept 2007].) In that case the defendant was convicted of burglary in the second degree, a violent felony offense pursuant to Penal Law § 70.02 (1) (b), despite simply entering the victim's apartment without breaking or threat and thereafter readying himself to, ostensibly, steal her belongings. When caught by the victim inside her apartment the defendant then peaceably left upon the victim's request. The Third Department rejected the defendant's "challenges as unconstitutional or illegal the legislative classification of burglary in the second degree as a violent felony because no violence was used or proven in this case, arguing that he was denied due process because he was not allowed to contest this classification." (Id.) Thus, while the defendant used no violence at all in committing this crime he was thereafter, if not otherwise before, deemed a violent felony offender.{**88 Misc 3d at 351}

An important distinction between Johnson and the instant case is that this court knows of no online registry informing the community of the whereabouts of individuals in New York who have been convicted of violent felony offenses that are not sex offenses. Therefore, the liberty interest affected by the stigma of being convicted of a violent felony offense like burglary in the second degree which involved no underlying factual violence, and therefore being "mislabeled" a violent felony offender, is different only in that that designation is not broadcast and/or available to the public via online registry. This court elucidates this distinction only to illustrate that the apparent fine line drawn by the appellate courts is whether that designation is widely accessible by the community, and so long as it is not, mislabeling is apparently not of constitutional dimension.

For all of the foregoing reasons, this court holds that the defendant shall not be designated a sexually violent offender pursuant to Correction Law § 168-a (3). Thus, the defendant remains classified as a level two sex offender.