Relates to the definition of a sexually violent offender as applied to out-of-state offenders

1 Co-sponsor

• Kenneth Zebrowski

BILL NUMBER:A10612

Title of bill

An act to amend the correction law, in relation to the definition of a sexually violent offender as applied to out-of-state offenders

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Criminal Law and Procedure.

This measure would amend section 168-a of the Correction Law to correct an apparent error in the definition of a "sexually violent offender" as it pertains to out-of-state offenders who establish residence in this State.

Correction Law section 168-a (1) defines a "sex offender" to include a person convicted of either a "sex offense" or a "sexually violent offense" as those terms are defined in § 168-a (2) and (3) respectively. An offender who has committed a "violent sex offense," however, is treated more harshly than the one who commits only a "sex offense." A "sexually violent offender," for instance, must register annually for life regardless of the risk level ascribed, and is never eligible to be relieved from the duty to register (Corrections Law § 168-h (2)).

For offenders who have been convicted of crimes within New York, deter- mining whether an offender has committed a "sex offense" or a "violent sex offense" involves a straightforward reference to the Penal Law section the offender was convicted of violating. As applied to out-of- state offenders, however, the statute provides that a "sex offense" includes a conviction for "a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdic- tion in which the conviction occurred" (Corrections Law § 168-a (2)(d)(ii)). A "sexually violent offense" is defined, in part, as an offense in any other jurisdiction which includes all of the essential elements of any such felony provided for in paragraph (a) of this subdi- vision ..." if the definition ended there the treatment of in-state and out-of-state offenders would be consistent because paragraph (a) of the subdivision simply enumerates the Penal Law offenses which are denomi- nated violent for purposes of the statute. The definition of a "sexually violent offense" continues, however, as follows:

or a felony in any other jurisdiction for which the offender is required to register as a sex offender in which the conviction occurred" (Correction Law § 168 (3)(b) emphasis supplied).

The final phrase of the definition is therefore identical to the defi- nition of a "sex offense," and therefore collapses the distinction between violent and non-violent sex offenses, at least as it applies to out-of-state offenders who reside in New York.

We believe that the Legislature's likely intention was to reserve the more serious "sexually violent offense" category to out-of-state

convictions under statutes that match the elements of sexually violent felonies under New York law; and that that situation is covered by the first part of Correction Law section 168 (3)(b). The second part of the sentence, which tracks the language of section 168a 2(d)(ii), was presumably included in error. This measure therefore corrects that error by deleting the errant phrase.

This measure, which would have no meaningful fiscal impact on the State, would take effect immediately.

2010 Legislative History: None. New proposal.