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.