No. 99 Matter of North v Board of Examiners of Sex Offenders of the State of New York

Todd North was charged in federal court with possession of child pornography after federal
agents executed a search warrant at his home in the City of Jamestown on February 6, 2002, and seized his computer. Authorities alleged he had used the computer to download images of children between the ages of 7 and 17 engaged in sexual acts. In November 2004, he pleaded guilty to federal felony offenses under 18 USC §§ 2252A(a)(5)(B) and 2256(8)(A) and was sentenced to five years probation.

When the Board of Examiners of Sex Offenders of the State of New York notified North in
February 2005 that he must register under New York's Sex Offender Registration Act, he filed this suit to annul the determination. North argued that 2002 amendments to Correction Law § 168-a(2)(d)(iii), which require registration for offenders convicted of his federal crime, do not apply to him. They require registration by an offender who committed his crime on or after the amendments' effective date of March 11, 2002, or who had not completed serving his sentence on that date. North pointed out that his offenses were committed prior to the effective date and, since he was not convicted until 2004, he was not serving any sentence on that date.

Supreme Court agreed with North that the 2002 amendments do not apply to him, but it
concluded he was required to register as a sex offender under Correction Law § 168-a(2)(d)(i), which requires registration by persons convicted "of an offense in any other jurisdiction which includes all of the essential elements of" a New York offense requiring registration. The court said the federal crime of which North was convicted "contains all of the essential elements of Penal Law Section 263.16 except it criminalizes possession of images of pornography of children under eighteen, unlike the New York statute which makes criminal possession of images of children less than sixteen years of age.

Although a strict application of the essential elements test would lead to the conclusion that the
elements of the offenses must be identical[,] the court rejects this approach and adopts the liberal
approach to interpretation of the statute used" in Matter of Millan (189 Misc2d 419, revd on other
grounds 295 AD2d 267).

The Appellate Division, Fourth Department affirmed the order dismissing North's petition, but
on a different ground. It said Supreme Court erred in requiring North to register under section
168-a(2)(d)(i) "because the federal offenses of which he was convicted do not contain the same
essential element of Penal Law § 263.16 with respect to the age of the persons portrayed in the
pornography, i.e., a child less than 16 years of age...." However, it concluded he is required to register under Correction Law § 168-a(2)(d)(iii), notwithstanding that he committed the offenses before and was convicted and sentenced after the amendments took effect. "[T]he legislative history establishes that the intent of the Legislature was to clarify the existing law by enumerating federal offenses to be included within the definition of the term sex offense..., and to broaden the class of sex offenders who are required to register in New York State in order to comply with federal law...," the court said. In any event, it said, he is required to register as a condition of his federal sentence of probation.