Supreme Court, Kings County, August 29, 2018

Legal Aid Society, Criminal Appeals Bureau (Arthur H. Hopkirk of counsel), for defendant.

Eric Gonzalez, District Attorney (Victoria Nunez of counsel), for plaintiff.

The facts in the case as set forth in the report prepared by the New York State Board of Examiners of Sex Offenders, and not disputed by either party, are as follows:

On October 15, 2011, at approximately 10:00 p.m., Mr. Hernandez, a stranger to the complainant/victim, armed with a knife, entered her bathroom while she was taking a shower, locked the door and turned off the lights. He placed the knife to her head and grabbed her breasts (over her towel). A struggle ensued during which the victim was cut by the knife and had to receive 10 stitches.

On June 4, 2013, under indictment No. 8898/2011, defendant accepted the court's offer, over the People's objection, to plead guilty to Penal Law §§ 140.30 (2) and 130.91, burglary in the first degree as a sexually motivated felony, with the promised sentence of eight years' prison followed by five years' postrelease supervision, with the understanding that he would have to register as a sex offender, pursuant to Correction Law § 168-f.

On June 14, 2013, defendant was sentenced consistent with the original promise and was certified a sex offender pursuant to Correction Law § 168-d (1) (a). The defendant now seeks an order, pursuant to Criminal Procedure Law § 440.20 (1), to set aside a portion of his sentence that certifies him as a sex offender. Specifically, defendant asserts that first degree burglary as a sexually motivated felony is not "among the crimes designated as registerable sex offenses under the Correction Law, see Correction Law § 168-a (2) (a) (i-iii)" and he is therefore not required to register under the Sex Offender Registration Act (SORA). (Defendant's affirmation at 3.) Defendant's request for relief is not properly before this court pursuant to Criminal Procedure Law § 440.20 (1). (See People v [*2]Hernandez, 93 NY2d 261 [1999]; People v Lisle-Cannon, 31 AD3d 467 [2d Dept 2006].)^[FN1] Consistent, however, with the dictum in Lisle-Cannon, the court will treat the instant motion{**61 Misc 3d at 536} as a motion to vacate the judgment of conviction under Criminal Procedure Law § 440.10.^[FN2] The People oppose the instant motion. For the reasons that follow, defendant's motion is denied without a hearing.

All "sex offenders" are required to register pursuant to the Sex Offender Registration Act, Correction Law article 6-C. A "sex offender" is anyone convicted of a "Sex offense" as defined in Correction Law § 168-a (2), or a "Sexually violent offense" as defined in Correction Law § 168-a (3). Therefore, if an individual is convicted of a sex offense or a sexually violent offense, they must register pursuant to SORA.

In 2007, the New York State Legislature enacted the Sex Offender Management and Treatment Act (SOMTA). The centerpiece of SOMTA was to provide for civil commitment of certain high risk sex offenders after their prison sentences expired. It also broadened the definition of sex offenses by including in the definitional section, Correction Law § 168-a (2), sexually motivated felonies as defined in Penal Law § 130.91. This category of felonies, which includes murder, violent assault, robbery, and burglary, while not per se sex crimes, are committed for the purpose of satisfying the actor's "direct sexual gratification" (Penal Law § 130.91 [1].)

The addition of this reference to sexually motivated felonies was the only change made to the Correction Law and SORA as a result of the 2007 amendments codified in SOMTA—the addition of this single clause, "or as a sexually motivated felony defined in section 130.91 of such law." (Correction Law § 168-a [2] [iii].) In all other respects, section 168-a remained unchanged.

Correction Law § 168-a (2) (i)-(iii) provides:

" 'Sex offense' means: (a) (i) a conviction of or a{**61 Misc 3d at 537} conviction for an attempt to commit any of the provisions of sections 120.70, 130.20, 130.25, 130.30, 130.40, 130.45, 130.60, 230.34, 250.50, 255.25, 255.26 and 255.27 or article two hundred sixty-three of the penal [*3]law, or section 135.05, 135.10, 135.20 or 135.25 of such law relating to kidnapping offenses, provided the victim of such kidnapping or related offense is less than seventeen years old and the offender is not the parent of the victim, or section 230.04, where the person patronized is in fact less than seventeen years of age, 230.05, 230.06 . . . subdivision two of section 230.30, section 230.32, 230.33 . . . of the penal law . . . or (ii) a conviction of or a conviction for an attempt to commit any of the provisions of section 235.22 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 or as a sexually motivated felony defined in section 130.91 of such law" (emphasis added).

Citing the language in italics, supra, "any provisions of the foregoing sections," defendant argues that burglary in the first degree as a sexually motivated felony is not a registerable offense under SORA because it is not included in the "foregoing sections." Carrying this argument to its logical conclusion, the bulk of the crimes listed in Penal Law § 130.91 would be excluded from the registration requirements of SORA. Indeed, only the highest degrees of kidnapping, and crimes where the actor financially profits from the sexual conduct of others: promoting or compelling prostitution of children, disseminating indecent materials to minors, or use of children in sexual performances, are listed in the "foregoing sections" of Correction Law § 168-a (2). None of the myriad offenses listed in Penal Law § 130.91, all by definition committed for the purpose of sexual gratification by the actor, including multiple degrees of murder, violent assault, robbery, and burglary, are listed in these "foregoing sections" and, therefore, according to the defendant's argument, if committed, not registerable under SORA. To subscribe to this argument, one would have to ask, why make reference to sexually motivated felonies at all in SORA? What this court must therefore determine is whether the amended language should be read as a stand-alone clause, independent of reference to "foregoing sections," or whether the {**61 Misc 3d at 538}court is bound to read the amended language as qualified by the preceding language.

This court recognizes that other courts of concurrent jurisdiction have reached an opposite conclusion.^[FN3] The logic behind these opinions is essentially the same. Notwithstanding the New York State Legislature's stated intent to require registration under SORA for the commission of all of the sexually motivated felonies listed in Penal Law § 130.91, the punctuation of the statute was never amended to unambiguously impart that meaning. Instead, the lack of a separate paragraph (iv) or semicolon immediately preceding the amended language, or as a sexually motivated felony defined in section 130.91 of such law, requires a reading that excludes all of the crimes listed in Penal Law § 130.91 except those listed in the foregoing sections of Correction Law § 168-a (2) (a) (i)-(ii).

While this court is ever cognizant of its obligation to construe criminal statutes narrowly, [*4]it must in this case show meaningful deference to the intention of the legislature. It therefore views the amended language as a stand-alone clause, self sufficient, self executing, and independent of the qualifying reference to "foregoing sections." This is the only sensible approach in light of the unambiguous legislative intent and a close reading of the statute.

Prior to the SOMTA amendment, Correction Law § 168-a (2) (a) (iii) only made reference to hate crimes and crimes of terrorism, Penal Law §§ 485.05 and 490.25, respectively.

In the case of a hate crime, the actor's intent must be driven by a belief or perception relating to the victim's "race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation." (Penal Law § 485.05 [1].) It is a crime motivated by prejudice, not sexual gratification. In the case of a crime of terrorism, the actor's intent must be to, "intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping." (Penal Law § 490.25 [1].) Here too, there is no sexual element. To require an individual to register as a sex offender for both crimes of hate and terrorism, there needs to be a sexual nexus. That nexus is established by connecting these{**61 Misc 3d at 539} crimes to the "foregoing" per se sex crimes listed in Correction Law § 168-a (2) (a) (i). The scienter necessary for the commission of each of these crimes, related to hate and terror, is fundamentally distinguishable from that which is required for a sexually motivated felony. That nexus is already established in the explicit language of Penal Law § 130.91, which requires sexual gratification as an element of intent when committing one of the enumerated felonies, none of which are per se sex crimes. Because the sexual component is an intrinsic element in the commission of a sexually motivated felony, no reference to the "foregoing sections" to establish the sexual nature of the crime is required to mandate registration under SORA. Because the nature of the intent required for the commission of a crime of hate or terror is so fundamentally different from the commission of a sexually motivated felony, the amended language must be read in a different context, as an independent clause. Said differently, commission of any of the sexually motivated felonies listed in Penal Law § 130.91, unlike the commission of a hate crime or a crime of terror, is motivated by the desire for sexual gratification, and therefore should be construed as self executing, whose meaning does not stand in relationship to the "foregoing sections." This view is strengthened by examination of Correction Law § 168-a (3) (a), the definition of what constitutes a "Sexually violent offense." It states,

" 'Sexually violent offense' means: (a) (i) a conviction of or a conviction for an attempt to commit any of the provisions of sections 130.35, 130.50, 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 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" (Correction Law § 168-a [emphasis added]).

Of note, no reference to Penal Law § 130.91, sexually motivated felonies, is included in this section.

As discussed above, when analyzing Correction Law § 168-a (2) (a) (iii), hate and terror crimes which qualified for registration under SORA necessarily had to be linked to the [*5]commission{**61 Misc 3d at 540} of crimes sexual in nature. That linkage was established by inclusion of a list of per se sex crimes and reference to them using the "foregoing sections" language. Similarly, in Correction Law § 168-a (3) (a) (iii), hate and terror crimes registerable under this section are those linked to the commission of additional per se sex crimes, here the most violent, by use of the identical grammatical formula, reference to the "foregoing sections."

The absence of any reference to sexually motivated felonies in this section, Correction Law § 168-a (3) (a), undermines the defense argument. If, as the defense argues, in order for sexually motivated felonies to be registerable they must be connected to per se sex crimes explicitly listed in SORA, reference to sexually motivated felonies would therefore necessarily be included in the context of sexually violent offenses. But they were not. It is an untenable conclusion that the legislature only contemplated registration for those sexually motivated felonies linked to the less serious sex crimes listed in Correction Law § 168-a (2) (a) (i), but not the most violent and heinous, as listed in Correction Law § 168-a (3) (a) (i) and (ii). Said differently, if the amended language was not meant to be read standing alone, as an independent clause, unqualified by reference to per se sex crimes listed in "foregoing sections," it would necessarily have been included in Correction Law § 168-a (3) (a) (iii). Ultimately, resolution of this controversy is found in the legislative intent of SOMTA.

In People v Santi (3 NY3d 234, 243 [2004], citing Williams v Williams, 23 NY2d 592, 598 [1969]), the Court of Appeals reaffirmed the long established policy that " '[i]n implementing a statute, the courts must of necessity examine the purpose of the statute and determine the intention of the Legislature.' " The Court further reiterated that " '[t]he primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature' " (id. at 243, citing McKinney's Cons Laws of NY, Book 1, Statutes § 92 [a] at 177). Moreover, "Legislative intent drives judicial interpretations in matters of statutory construction." (Id. at 243, citing People v Allen, 92 NY2d 378, 383 [1998].)

As mentioned above, in 2007, the New York State Legislature adopted, and Governor Elliot Spitzer signed, the Sex Offender Management and Treatment Act (2007 NY Senate-Assembly Bill S3318, A6162). That bill provided for the civil commitment of sexually violent individuals who posed a continued risk to{**61 Misc 3d at 541} public safety after the completion of their prison sentences. Additionally, the bill created a new section to the Penal Law, creating the new crime of "Sexually motivated felony." The bill amended Correction Law § 168-a, by expanding the definition of sexual offenses, required to be registered under SORA, to include this newly created category of crime.

Examination of the bill jacket reveals several references to the creation of the new crime, sexually motivated felonies, and the requirement that conviction of this category of crime requires registration under Megan's Law (SORA).^[FN4] Three of these references are worth noting.

From the New York State Senate Introducer's Memorandum in Support (Dale M. Volker, sponsor),[*6]"Section 22 amends the list of registerable crimes in Correction Law § 168-[a] so that a defendant convicted of a Sexually Motivated Felony will be required to register under Megan's Law." (See Bill Jacket, L 2007, ch 7 at 16 [emphasis added].) The identical language is found in the Governor's Program Bill Memorandum.^[FN5] Additionally, the same language is set forth in the Division of the Budget Bill Memorandum. (Id. at 24.)

The legislative intent is clear, unambiguous, and manifest. It is incumbent on this court not to implement the statute in a manner which will lead to an absurd result. (Santi at 242; People v Mills, 11 NY3d 527, 537 [2008]; see also Matter of Branford House v Michetti, 81 NY2d 681, 686 [1993].) Consistent with the legislative intent, and a sensible reading of Correction Law § 168-a (2) (a) (iii), those convicted of sexually motivated felonies are required to register under SORA.