Conviction by court-martial can form the basis of a risk level classification as a sex offender.

In this term's other authored opinion, Justice Pigott wrote for the majority in People v Kennedy, where the Court held that a conviction by court martial can form the basis of a risk level classification as a sex offender. According to the court, the issue is a matter of first impression in New York. The defendant in Kennedy was court martialed and convicted of something called "indecent assault" pursuant to the Uniform Code of Military Justice ("UCMJ"). (Id. at 1.) The Navy notified New York that defendant was a sex offender when defendant relocated here, and he was subsequently classified as a level "2" offender under New York's Sex Offender Registration Act ("SORA"). Defendant argued that "indecent assault" under the UCMJ did not correspond to any sex offense requiring registration under SORA. (Id. at 2.) The Fourth Department disagreed, finding that defendant qualified as a sex offender under the section of SORA defining a SORA-eligible sex crime to include "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." (Id.) After finding that "indecent assault" under the UCMJ qualified as a felony in New York because it carried a maximum five-year sentence, the Fourth Department concluded that defendant was "required to register as a sex offender in the jurisdiction in which the conviction occurred" because "Secretary of Navy Instruction 5800.14 provides that a conviction of, inter alia, indecent assault in violation of UCMJ article 134 'shall trigger requirements to notify [s]tate and local law enforcement agencies and to provide information to [the offender] concerning sex offender registration requirements.'" (Id. at 3.)

That last part I don't quite get. I understand if a defendant commits a sex felony in Minnesota and is required to register as a sex offender in Minnesota as a result, then in that situation the defendant's Minnesota sex crime would clearly fall within the definition of a sex crime relied on by the Fourth Department in Kennedy and the defendant could be classified as a sex offender in New York. But is a defendant who is court-martialed for a sex crime by a Navy military court really required to register as a sex offender in the "jurisdiction in which the conviction occurred", i.e. with the Navy? And what would that jurisdiction be in that case--a naval base? Indeed, in Kennedy (and I imagine in most cases where a defendant is found guilty after court-martial of a sex crime), the defendant is effectively kicked out of the "jurisdiction" as a result of the conviction, i.e. dishonorably discharged. In fact, there doesn't appear to be any "registration" requirement flowing from a conviction after court-martial--the "Secretary of Navy" instruction referred to by the Fourth Department in Kennedy does not require the defendant to register with the Navy as a sex offender--it requires the Navy to notify "state and local law enforcement agencies" of the sex crime conviction, and requires the Navy to further inform the defendant of any sex offender registration requirements in that state. (Kennedy at 3.) A defendant convicted of a sex felony by court martial is arguably not required by the Navy to register as a sex offender--the "Secretary of the Navy Instruction" only requires notification and information. Because of that, I find it hard to see how the New York definition of a sex crime relied on by the Fourth Department (defining as a sex crime "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") is applicable.

I say all this knowing nothing about military law, so it is possible I'm missing something. It will be interesting to see if the Court of Appeals grants leave to review this issue.