Tuesday, June 06, 2006

CA: Navy court martial conviction for "indecent assault" not classifiable sex offense under NY SORA

People v Kennedy, __ NY3d __ [available here]

This time last year, the Fourth Department held that a Navy court martial conviction for "indecent assault" was a classifiable offense under the section of New York's SORA law 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." (People v Kennedy, 20 AD3d 137, ___ [4th Dept 2005].) The Fourth Department noted that the certain Navy regulations require the Navy to notify state and local law enforcement of an offender's Navy sex crime convictions and to further provide information to the offender concerning any registration requirements. (Id. at __.) This was the equivalent of "registering" in the "jurisdiction in which the conviction occurred" for purposes of the SORA statute and thus (according to the Fourth Department) a person convicted of "indecent assault" by a Navy court martial was required to register as a sex offender in New York. See my previous post on Kennedy here.

The Court of Appeals reversed the Fourth Department on this issue in a decision handed down today. From Judge Rosenblatt's majority opinion:

County Court's determination fails because the second element of section 168-a(2)(d)(ii) requires that the conviction result in the offender's obligation to register in the "other jurisdiction,", i.e. where defendant was convicted--here, the United States Navy. The People argue that Secretary of the Navy Instruction 5800.14 obligates defendant to register with the Navy. It does not. This "Instruction" is a notification order directed to "all Ships and Stations"; by its own terms, it places responsibility to provide notification not on the offender but on the Assistant Secretary of the Navy for Manpower and Reserve Affairs, the Navy Personnel Command, the Commandant of the Marine Corps, the "Convening Authority or Convening Authority's Designee" for each court-martial, the Naval Criminal Investigative Service and the Judge Advocate General of the Navy.

The People have presented no evidence of any kind suggesting that naval sex offenders must register with the Navy or have any ongoing obligation to keep the Navy informed of their whereabouts once they leave the service. Furthermore, the People have presented no evidence that the Navy or Department of Defense maintains any registry or equivalent database; if there is no registry, there can be no registration and no registrants. Because the People have not shown that defendant ever had any obligation to register with the other jurisdiction, they have not met the second statutory requirement for registration in New York.

(People v Kennedy, __ NY3d at __.)

Judge Graffeo concurred separately "to highlight the need for legislative reconsideration." (Id. at __.)

I do not have a whole lot to say about Kennedy that I didn't say when the Fourth Department first decided the case last year (see my previous post here).

The Fourth Department will hand down decisions from its May, 2006 term this Friday. I will post on the few leftover decisions from the Court's April term between now and then.