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In re Millan

Other Lower Courts

May 31, 2001

In the Matter of Bernard Millan.

Page 420

COUNSEL

Robert M. Morgenthau, District Attorney of New York County, New York City (Nicole Parisi of counsel), for People of State of New York. Curtis J. Farber, New York City, for defendant.

OPINION

Lewis Bart Stone, J.

Bernard Millan pleaded guilty on May 12, 1999, in the United States District Court for the Southern District of New York, to an indictment charging a violation of 18 U.S.C. § 2252 (a) (2), a federal class C felony, carrying a potential punishment of more than one-year imprisonment. The indictment charged that " Millan attempted to purchase videotapes depicting child pornography." The underlying facts indicate that Millan, using a computer, ordered tapes which depicted sex acts involving children ages 5, 6 and 14 years old. [1]

Based upon such conviction, the New York State Board of Examiners of Sex Offenders, acting pursuant to the New York Sex Offender Registration Act (SORA), Correction Law article 6-C, determined that Millan was required to register in New York State as a sex offender, and so notified him on December 7, 2000. Millan has challenged the applicability of SORA to him on the ground that the federal " conviction does not include all of the essential elements of the applicable designated felony as set forth in [SORA]."

SORA requires a person who has been convicted of certain criminal offenses, referred to in SORA as " sexual offenses," to register as a sex offender in the State of New York. A " sexual offense" is defined by express reference to a list of New York crimes if the conviction was in New York. Under SORA, crimes committed in other jurisdictions (which also imposes a registration requirement) include a conviction under federal law in a federal court in New York. There are two alternate criteria established to determine whether such crime is a " sexual offense" under SORA which requires SORA registration-- viz:

Page 421

1. whether the conviction in the other jurisdiction was " a conviction of an offense ... which includes all of the essential elements of any such felony provided for in paragraph (a) of this subdivision" (Correction Law § 168-a [2] [b] [paragraph (a) lists the New York offenses requiring registration] [the First Criterion]), or

2. whether the other conviction was a " conviction of 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. (Correction Law § 168-a [2] [b] [the Second Criterion].)

The People here seek to require Millan to register pursuant to the First Criterion. Millan objects on the ground that the federal conviction does not include " all the elements of the applicable designated felony as set forth in the New York State Correction Law."

Millan and the People agree that the relevant New York State provision is Penal Law § 263.16, possessing a sexual performance by a child, a class E felony. Penal Law § 263.16 provides that:

" A person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age."

The federal crime for which Millan was convicted provides, in pertinent part, that " any person who ... knowingly receives or distributes ... any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer [shall be punished as provided in subsection (b) of this statute]." " Child pornography" as defined in this statute requires the person depicted to have been a " minor," which is defined as any person under the age of 18 years. (18 U.S.C. § 2252A [a] [2] [A]; § 2256 [1], [8].)

The differences, Millan argues, are that the federal statute criminalizes possession of images of children under 18 (as distinct from the New York law which criminalizes possession of images of children under 16) and that the federal law requires that the offense be committed by the use of the mails or other shipment or transport in interstate commerce, including by computer (as distinct from the New York law which contains no such requirement).

The second objection is, upon analysis, almost frivolous. The requirement for an ...


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