The PEOPLE of the State of New York, Plaintiff,
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 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.
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
4. Registration consists of providing the local law enforcement agency
"having had jurisdiction in which such person resided at the time of his conviction, if different from where he currently resides and/or where he currently resides, of the name and aliases of such sex offender, the address at which he resided and/or at which he currently resides, the amount of time to be served on ... probation, the nature of the crime for which he was sentenced, transmitting at the same time a copy of such sex offender's fingerprints and photograph and a summary of his criminal record."
Corr.L. § 168-c(3).
5. Unless otherwise specified, all references will be to calendar days.
6. An offender's assigned level of risk of 1 (low), 2 (moderate) or
3 (high), must be preceded by a consideration of the factors or guidelines
set forth in Section 168-l (5):
(a) criminal history factors indicative of high risk of repeat offense, including: (i) whether the sex offender has a mental abnormality; (ii) whether the sex offender's conduct was found to be characterized by repetitive and compulsive behavior, associated with drugs or alcohol; (iii) whether the sex offender served the maximum term; (iv) whether the sex offender committed the felony sex offense against a child; (v) the age of the sex offender at the time of the commission of the first sex offense;
(b) other criminal history factors to be considered in determining risk, including: (i) the relationship between such sex offender and the victim; (ii) whether the offense involved the use of a weapon, violence or infliction of serious bodily injury; (iii) the number, date and nature of prior offenses;
(c) conditions of release that minimize risk [of] re-offense; including but not limited to whether the sex offender is under supervision; receiving counseling, therapy or treatment; or residing in a home situation that provides guidance and supervision;
(d) physical conditions that minimize risk of re-offense, including but not limited to advanced age or debilitating illness;
(e) whether psychological or psychiatric profiles indicate a risk of recidivism;
(f) the sex offender's response to treatment;
(g) recent behavior, including behavior while confined;
(h) recent threats or gestures against persons or expressions of intent to commit additional offenses; and
(i) review of any victim impact statement.
7. The annual registration with DCJS consists of "a statement in writing signed by the sex offender giving the information that is required by [DCJS] and [DCJS] [then enters] the information into an appropriate electronic data base or file". Corr.L. § 168-i.
8. Although Corr.L. § 168-h does not indicate that the verification must be performed "personally", this requirement is specified in Corr.L. § 168- f(3) which provides that "... a sexually violent predator must personally verify with the local law enforcement agency, the registration every ninety calendar days after the date of the initial release or commencement of parole" (emphasis added). While this provision refers to offenders who are released from custody after January 21, its requirement is similarly imposed on probationers and parolees released before that date, when the provision is read together with Sections 168-g(2) and 168-h.
[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]
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.
Based on the foregoing, defendant's motion to dismiss is granted
for facial insufficiency.