An accused charged with a sex crime must not only understand the potential criminal penalties associated with the sex crime charged, such as sentences of prison, probation or a combination of both prison and probation, but also, must be mindful of additional consequences which may flow under the statute commonly referred to as Megan's Law. A client charged with a sex crime must discuss with criminal defense counsel whether the particular charged crime is subject to the registration and notification requirements under New York Correction Law §168-a of the Sex Offender Registration Act ("SORA").
Under SORA the following included crimes under the New York Penal Law trigger the statute's notification and mandatory registration requirements:
an attempt to commit any of the provisions of sections 120.70 (Luring a child), 130.20 (Sexual misconduct), 130.25 (Rape in the third degree), 130.30 (Rape in the second degree), 130.40 (Criminal sexual act in the third degree), 130.45 (Criminal sexual act in the second degree), 130.60 (Sexual abuse in the second degree), 230.34 (Sex trafficking), 250.50 (Unlawful surveillance in the first degree), 255.25 (Incest in the third degree), 255.26 (Incest in the second degree) and 255.27 (Incest in the first degree) or article two hundred sixty-three of the penal law (Sexual Performance by a Child), or section 135.05 (Unlawful imprisonment in the second degree), 135.10 (Unlawful imprisonment in the first degree), 135.20 (Kidnapping in the second degree) or 135.25 (Kidnapping in the first degree) 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 (Patronizing a prostitute in the third degree), where the person patronized is in fact less than seventeen years of age, 230.05 (Patronizing a prostitute in the second degree) or 230.06 (Patronizing a prostitute in the first degree), or subdivision two of section 230.30 (Promoting prostitution in the second degree), or section 230.32 (promoting prostitution in the first degree) or 230.33 (Compelling prostitution) 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 (Disseminating indecent material to minors in the first degree), 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; or
(b) a conviction of or a conviction for an attempt to commit any of the provisions of section 130.52 (Forcible touching) or 130.55 (Sexual abuse in the third degree) of the penal law, provided the victim of such offense is less than eighteen years of age; or
(c) a conviction of or a conviction for an attempt to commit any of the provisions of section 130.52 or 130.55 of the penal law regardless of the age of the victim and the offender has previously been convicted of: (i) a sex offense defined in this article, (ii) a sexually violent offense defined in this article, or (iii) any of the provisions of section 130.52 or 130.55 of the penal law, or an attempt thereof; or
(d) a conviction of (i) an offense in any other jurisdiction which includes all of the essential elements of any such crime provided for in paragraph (a), (b) or (c) of this subdivision or (ii) a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred or, (iii) any of the provisions of 18 U.S.C. 2251, 18 U.S.C. 2251A, 18 U.S.C. 2252, 18 U.S.C. 2252A, [fig 1] 18 U.S.C. 2260, 18 U.S.C. 2422(b), 18 U.S.C. 2423, or 18 U.S.C. 2425, provided that the elements of such crime of conviction are substantially the same as those which are a part of such offense as of the date on which this subparagraph takes effect.
(e) a conviction of any of the provisions of subdivision two, three or four of section 250.45 of the penal law (Unlawful Surveillance in the second degree), unless upon motion by the defendant, the trial court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that registration would be unduly harsh and inappropriate.
SORA covers enumerated misdemeanors as well as felony sex crimes. The statute also covers offenses committed in other states and under federal law provided "all of the essential elements" of the crime committed in the foreign jurisdiction are included in any of the enumerated crimes covered under New York's SORA.
A defendant charged with Unlawful Surveillance in the Second Degree under subdivisions 2, 3 or 4 of PL §250.45 may escape the SORA requirements by motion to the court based upon an argument that registration would be "unduly harsh and inappropriate" because of "the nature and circumstances of the crime and to the history and character of the defendant."
The SORA statute classifies sex offenders under a three-tiered classification system with 3 being the highest and worst classification requiring lifetime registration and other ongoing reporting and notification requirements, while a 1 classification (lowest and best) triggers a 20 year registration period with less onerous reporting and notification requirements. Also level one sex offenders do not get included in the sex offender database available online to the public.
Prior to making a decision about whether to enter a guilty plea to a sex offense, the accused should consult with an experienced New York City criminal defense attorney for advice about whether the charged crime is covered by SORA, and, if so, where along the three-tiered classification spectrum the accused is likely to fall given: (1) the defendant's background, (2) the nature of the charged crime(s) and (3) other relevant circumstances which may mitigate or aggravate the court's view of the risk posed to society by the accused. The purpose of SORA is not to punish, but rather, New York's highest court has explained the purpose of SORA: "to protect the public from the danger of recidivism posed by sex offenders, to assist the criminal justice system to identify, investigate, apprehend and prosecute sex offenders, and to comply with the Federal Crime Control Act…"
People v. Stevens, 91 NY2d 270, 275 (1998)(internal quotes omitted).
If you have been arrested for a sex offense of any kind, please contact our office right away to schedule a consultation with one of our experienced criminal attorneys.