The Post Journal: Court Overturns Sex Offender Registrations

In People v. Adam Malloy, the case decided in June, Malloy’s attorneys argue his 2010 conviction of aggravated sexual battery in the state Correction Law violates the U.S. Constitution because it discriminates against sex offenders who are convicted of offenses in a state other than New York. The decision by the Board of Examiners of Sex Offenders determined Malloy did not need to register as a sexually violent offender, but county prosecutors departed from that finding to say the court should designate Malloy as a sexually violent offender based on the Kansas felony conviction. Prosecutors argued designating out-of-state defendants with a felony conviction serves a legitimate public purpose to protect the public from potential harm.

“Where, as here, an offender is designated a sexually violent offender merely because of an out-of-state conviction requiring out-of-state registration, the public is not accurately informed of the true risk posed by the offender,” wrote Justice E. Jeannette Ogden in the People v. Malloy decision. “We further conclude that the designation of defendant as a sexually violent offender – augmenting defendant’s SORA registration period from a term of 20 years to his entire lifetime – merely because of the location of the registrable offense does not result in a ‘criminal designation that rationally fits (defendant’s) conduct and public safety risk.”

The decision in People v. Malloy was not unanimous, with Justices Stephen Lindley, Henry Nowak concurring because they find the foreign registration requirement to designate a sex offender as sexually violent is unconstitutional on its face regardless of the circumstances.

Two other justices — Presiding Justice Gerald Whalen and Justice Scott DelConte — dissented from the decision by saying the crime committed in Kansas would have qualified as a sexually violent crime in New York state and that Malloy’s lawyers did not prove that the court erred in designating him as a sexually violent sex offender.

“Sexual abuse in the first degree is a sexually violent offense under New York law,” Whalen wrote. “Thus, the conduct of which the defendant was convicted under the Kansas statute, if committed in New York, regardless of whether we begin our analysis with the essential elements test or the unchallenged conduct described in the case summary. In sum, defendant failed to establish that he was not a sexually violent offender under New York law and, as such, there can be no violation of his ‘constitutionally protected liberty interest, applicable in a substantive due process context, in not being required to register under an ‘incorrect’ (designation.”

That precedent was followed in a decision released Friday in People v. Charles Zellefrow. The facts of the case are similar to the Malloy case. Zellefrow was convicted of a felony sex offense in Pennsylvania that required him to register as a sex offender in Pennsylvania. He lived in Pennsylvania for 20 years before moving to New York. The Board of Examiners of Sex Offenders required him to register as a sex offender in New York, and Foley designated Zellefrow as a sexually violent offender under the foreign registration clause. The only difference in the cases is Malloy was found guilty by a jury while Zellefrow pleaded guilty in court before a trial.

“In our view, that distinction is immaterial inasmuch as the designations under the foreign registration clause of Correction Law are based on the out-of-state crime of conviction, not the unproven underlying allegations. Of course, if defendant has committed his offense in New York, he would not be designated a sexually violent offender, and the result should not change simply because he committed the offense in a neighboring state.”

The decision in Zellefrow broke along the same lines as the Malloy case, with Ogden writing the majority opinion, Lindley and Nowak concurring for the same reasons they concurred in Malloy and Whalen and DelConte dissenting.