Gerald Lefcourt, New York City, for respondent.
Eliot Spitzer, Attorney General, New York City (Christine Morrison of counsel), for People of the State of New York.
Rosalyn Richter, J.
In this proceeding, this court must decide whether it has the authority to review a determination made by the New York State Board of Examiners of Sex Offenders (the Board) requiring David Nadel (respondent), who was convicted of a Federal sex offense, to register in New York State as a sex offender. For the reasons discussed herein, the court concludes that it has the power to review whether the Board's determination is legally correct. Upon reviewing the Board's decision, the court finds that the Board erred when it determined that respondent's Federal conviction requires him to register as a sex offender in New York.
On June 23, 1998, respondent pleaded guilty in the Southern District of New York to an information charging one count of computer transmission of material involving sexual exploitation of minors (18 U.S.C. § 2252 [a] ).  That charge arose from allegations that respondent had transmitted via the Internet three photographs of juveniles engaged in sexually explicit conduct. Respondent was sentenced to home detention for a period of 15 months and five years' probation, and was directed to undergo mental health treatment during the entire term of his probation.
On May 17, 2000, the Board informed respondent that since he had been convicted of a sex offense in another jurisdiction and resides in New York State, he may be required to register
as a sex offender under the provisions of the Sex Offender Registration Act (Correction Law art 6-C [SORA]).T he letter invited respondent to submit any materials that he wished the Board to consider in making their determination.
In a letter to the Board dated June 6, 2000, respondent's counsel argued that respondent should not be required to register as a sex offender because the Federal crime of which respondent was convicted does not contain all of the essential elements of any New York State sex offense. Specifically, respondent contended that whereas the Federal crime requires that a defendant transmit sexually explicit images of an individual under the age of 18, the analogous State statutes criminalizing such conduct apply only where the images are of children less than 16 years old. Thus, respondent argued, under the strict statutory construction rules developed by the Court of Appeals for using out-of-State convictions to adjudicate defendants as prior felony offenders, respondent's Federal conviction does not qualify as a sex offense under SORA's definition of that term.
On August 15, 2000, the Board informed respondent and the clerk of this court that it had determined that respondent would be required to register because the Federal statute to which respondent pleaded guilty contains the essential elements of two New York crimes: promoting a sexual performance by a child (Penal Law § 263.15) and promoting an obscene sexual performance by a child (Penal Law § 263.10). The Board's submission to this court included a case summary which indicated that the Board's conclusion that respondent must register was based upon a review of the respondent's file, including a presentence investigation conducted by the Southern District's Probation Office. The case summary states that the three photographs respondent had transmitted over the Internet contained images of children under the age of 12.  Thus, the Board concluded, " the facts of [respondent's] case clearly entail the transmission of material depicting children, under the age of sixteen, engaged in sexual behavior." The Board recommended to the court that respondent be adjudicated a level one sex offender.
This court's correspondence unit subsequently informed respondent that the Board had recommended that he register as a level one sex offender. Respondent was advised that the court would make a final determination of the risk level at a hearing at which he had a right to be present and have counsel. At the request of respondent, the hearing was adjourned for the parties to submit written memoranda on two issues: (a) whether this court has the power to review the Board's determination that respondent must register as a sex offender, and, if so, (b) whether the Board erred in making its determination.  After consideration of the parties' submissions, this court concludes that it has the power to review the Board's determination that respondent's Federal conviction requires him to register as a sex offender in New York. Upon such review, the court finds that the Board erred in concluding that respondent must register, and therefore no factual hearing regarding respondent's specific risk level is necessary.
On January 21, 1996, New York's Sex Offender Registration Act (Correction Law art 6-C) became effective. SORA established a notification and registration scheme for individuals convicted of certain enumerated sex offenses. Under that scheme, a convicted sex offender is classified into one of three levels based upon the risk that the offender will commit a repeat offense. (Correction Law § 168-l .) If the risk of repeat offense is low, the sex offender is designated as a level one offender. For these individuals, SORA requires notification to law enforcement agencies located in the offender's jurisdiction, and annual registration by the offender for a period of 10 years. (Correction Law §§ 168-f, 168-h, 168-l  [a].) Level two classification, which is given to offenders who present a moderate risk of reoffense, also requires law enforcement notification and annual registration for 10 years. In addition, SORA allows law enforcement agencies to notify any entity with " vulnerable populations" that a convicted level two sex offender resides in the community. Those entities, in turn, may further disseminate that information at their ...