MODEL PENAL CODE ANNOTATED

The PEOPLE of the State of New York, Plaintiff,

v.
Wayne MANSON, Defendant
Criminal Court of the City of New York,
New York County
173 Misc.2d 806,  661 N.Y.S.2d 773 (1997)

 
  BETSEY BARROS, Judge.

 The defendant in this case is charged with a violation of Correction Law Section 168-t, in that he is alleged to have failed to personally register with the local law enforcement agency as a sexually violent predator, within ninety (90) days after his "initial release or commencement of" probation, as mandated by Corr.L. §§ 168-f(3) and 168-h [n. 1].
 

 On January 22, 1992, defendant pleaded guilty to a violation of Penal Law  (P.L.) § 130.65(1), Sexual Abuse (by forcible compulsion) in the First Degree, and was sentenced to six (6) months in jail and five (5) years probation.

 On July 25, 1995, the New York legislature approved passage of the Sex Offender Registration Act ("the Act"), Section 2 of [p. 808] Chapter 192 of the Laws of 1995, Correction Law Art. 6-C, Sections 168 et seq. (Corr.L. § 168), commonly referred to as New York's "Megan's Law".  The Act became effective on January 21, 1996, almost four years to the day that the defendant completed four of the five years of his probationary term.

 Intended to provide "law enforcement with additional information critical to preventing sexual victimization and to resolving incidents involving sexual abuse and exploitation promptly" (L.1995, ch. 192, § 1), the Act imposed registration requirements on sex offenders and established procedures for the release or notification [n. 2] to the law enforcement community and the public of information pertinent to the identity and location of convicted sex offenders.
 

    Registration Requirements of the Act

 Pursuant to the terms of the Act, a sex offender [n. 3] on probation on January 21, 1996, must be identified by the Department [p. 809] of Probation and Correctional Alternatives ("DOP") and registered [n. 4] with the local law enforcement agency within forty-five (45)  days [n. 5] after that date. Corr.L. § 168-c(3).  DOP must also assess the sex offender's level of risk pursuant to Section 168-l. [n. 6]  Corr.L. § 168-g(1).  Once the sex offender's risk level is determined, DOP must notify the offender of such determination. The offender must then register with his probation [p. 810] officer within ten (10) days of the notification.  Corr.L. § 168-g(2).  If classified as a sex offender, the offender must thereafter register with the Division of Criminal Justice Services ("DCJS" or "the Division") [n. 7] on each anniversary of his initial registration for a period of ten years.  Corr.L. §§ 168-g(2), 168-f(2) and 168-h.  However, an offender deemed a sexually violent predator must not only register on the anniversary of his initial registration date, Corr.L. §§ 168-g(2) and 168-f(2), he must also personally "verify (his registration) quarterly (or every 90 days) for a minimum of ten years", [n. 8] unless otherwise ordered by the court.  Corr.L. § 168-h (emphasis added).
 

[A] review of the accusatory instrument reveals that it is facially insufficient, a defect that is non-waivable and deprives the court of jurisdiction to proceed further with this criminal action.  People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987);  People v. Hall, 48  N.Y.2d 927, 425 N.Y.S.2d 56, 401 N.E.2d 179 (1979).

[p. 811] Sufficiency of Accusatory Instrument

 To be sufficient, an information, together with any accompanying supporting deposition, must contain an accusatory part which designates the offenses charged, and a factual statement alleging non-hearsay facts of an evidentiary nature.  C.P.L. §§ 100.15(1) and (2).  The factual statement must establish each element of the offenses charged, and provide reasonable cause to believe that the defendant committed said crimes.  C.P.L. § 100.40(1)(b) and (c);  People v. Alejandro, 70 N.Y.2d at 138-139, 517 N.Y.S.2d 927, 511 N.E.2d 71.

 The accusatory part of the accusatory instrument alleges that defendant, "a sexually violent predator, failed to personally verify with the local law enforcement agency his registration every 90 days after the initial release or commencement of probation" (emphasis supplied).

* * *

 As amended, the factual allegations in the accusatory instrument state that Police Officer John Bardazzi, on November 18, 1996, at about 12:00 noon, at 314 W. 40th Street, [p. 813] in the County and State of New York, was informed by P.O. Caracciolo, [n. 10] of the Sex Offender Monitoring Unit, that [P.O. Caracciolo]
 

examined the records of the New York State Department of Probation which stated that the defendant was convicted of Sexual Abuse in the First Degree and is currently on probation as a Level Three Sex Offender.
Deponent[, P.O. Bardazzi], further states that he is informed by informant Caracciolo that ... defendant failed to register in person with the NYPD Sex Offenders Monitoring Unit on May 28, 1996, in conformance with Section 168-g of the Correction Law.
 There is no allegation in either the accusatory or factual part of the accusatory instrument that the defendant was aware of the 90 day verification requirement and knowingly and intentionally refused to verify.

 Section 168-t of the Correction Law does not expressly designate a culpable mental state.  It simply states that
[a]ny person required to register pursuant to the provisions of this article who fails to register in the manner and within the time periods provided for herein shall be guilty of a class A misdemeanor....
 However, P.L. § 15.15(2) specifically provides that where a statute defining an offense does not expressly designate a culpable mental state,
"a culpable mental state may nevertheless be required for the commission of such offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state.  A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability...."
 A close reading of the Act reveals that the legislature defined a crime of mental culpability when it imposed criminal penalties on offenders, such as the defendant, who are alleged to have failed to register or verify on a prescribed date.

 Section 168-g(2), in relevant part, states that "[a]ny sex offender [on probation on January 21, 1996] who fails or refuses [p. 814] to [register] shall be subject to the same penalties ... which would be imposed upon a sex offender who fails or refuses to so comply with the provisions of this article on or after [January 21, 1996]" (emphasis added).  The refusal language invoked in this provision presupposes volitional conduct.

 The failure of the People to allege the essential elements of knowledge and intent renders the accusatory instrument facially insufficient.  People v. Alejandro, 70 N.Y.2d at 135-136, 517 N.Y.S.2d 927, 511 N.E.2d 71;  People v. Tarka, 75 N.Y.2d 996, 557 N.Y.S.2d 266, 556 N.E.2d 1073 (1990).  See also, People  v. Stephenson, N.Y.L.J., Feb. 26, 1996, p. 35, col. 3 (App.Term 2d Dept.) (criminal contempt conviction reversed where accusatory instrument failed to allege that defendant had knowledge of order of protection).

 Insofar as the accusatory instrument in this case does not allege the essential elements of the offense, namely, that the defendant, a sexually violent predator, on probation on January 21, 1996, with knowledge of his obligation to personally verify his registration with the law enforcement agency on May 28, [p. 816] 1996, intentionally failed to do so, the accusatory instrument is facially insufficient.

Conclusion

 Based on the foregoing, defendant's motion to dismiss is granted for facial insufficiency.