BILL NUMBER: S2696

SPONSOR: SEPULVEDA
 
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 teams 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 para-
graph (a) of this subdivision ..." 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 denominated 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 definition 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 offen-
ders 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 mean-
ingful fiscal impact on the State, would take effect immediately.

 
LEGISLATIVE HISTORY:

A.10612 was referred to correction and advanced to the third reading
cal. 817 in 2010.
A.7290 Passed Assembly 2011, Passed Assembly 2012.
A.4586 Passed Assembly 2013, Passed Assembly 2014.
A1692 was referred to correction in 2016, 2018.

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
Immediately