The opinion of the court was delivered by: Michael Gerstein, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
This is a case of first impression involving the constitutional prohibition against double jeopardy. The parties have not cited any case, nor has our research uncovered any, addressing the precise issue presented, i.e. whether a convicted sex offender, registered as such in New York, who moves out of state and is convicted of failing to register under the laws of his new residence, may subsequently be prosecuted in New York for failure to register his change of address and failure to register on the anniversary of initial registration in New York, the state from which he moved.*fn1
Defendant moves to dismiss a Complaint charging him with violating Corrections Law (hereinafter "CL") § 168-t(f4), Failure to Register as a Sex Offender within Ten Days after any Change of Address - first offense, and two counts of § 168-t(f2), Failure to Register or Verify on Each Anniversary of Initial Registration. The criminal charges stem from allegations that Defendant, a class two Sexual Offender in New York, left his home in New York and moved to Connecticut without notifying the New York authorities.
Defendant moves to dismiss pursuant to Criminal Procedure Law ("CPL") § 170.30(1)(c), arguing that the prosecution is barred by reason of a previous prosecution, as defined by CPL § 40.20, for failing to register in Connecticut as a sex offender, as required by Connecticut statute. Defendant argues that further prosecution would violate the double jeopardy clause contained in the Fifth Amendment to the United States Constitution and the companion provision contained in Article I, § 6 of the New York State Constitution.
We find none of these arguments persuasive and deny the motion.
Factual and Legal Background
On July 1, 1985, Defendant was convicted of Rape in the First Degree and Sodomy in the First Degree under New York law. On November 15, 1996, Defendant registered pursuant to New York's Sex Offender Registration Act ("SORA") as a Level Two Sex Offender, with mandatory lifetime registration. It is alleged in this prosecution that in 2005, Defendant moved to Connecticut, failed to register within ten days after his change of address, and subsequently failed to register on the 2006 and 2007 anniversaries of his initial registration in New York. Annual registration forms sent to Defendant's last reported address at the end of 2005, November 15, 2006 (returned with no forwarding address) and 2007 were not returned by Defendant.
On December 27, 2007, Defendant was charged with Failure to Register as a Sex Offender in violation of Connecticut General Statute ("CGS") 54-253, which, in pertinent part, requires registration of all convicted sex offenders residing in Connecticut, whether convicted in that state or elsewhere. On January 6, 2008, Defendant was arraigned in New York on the current charges. On May 5, 2008, Defendant pled guilty to violating CGS 54-253. He was subsequently sentenced to a three year suspended sentence and a conditional discharge and was released from custody in Connecticut. On August 13, 2008, Defendant voluntarily returned to New York for the continuation of his case here.
Defendant's Motion to Dismiss the Complaint is Denied
Pursuant to New York's SORA, see NY Correct. Law § 168 et. seq. (McKinney 2007),
Defendant is required to register with appropriate governmental authorities.*fn2 Especially pertinent to our case are the requirements for reporting a registrant's address and any change of address. Level-one and level-two registrants must verify their address by mail to the Division of Criminal Justice annually upon the anniversary of their initial registration. See id. § 168f(2)*fn3. In addition, all registrants must register a change of address with the law enforcement agency where last registered within ten days of moving. See id. § 168f(4).
Here, Defendant is charged, under New York's SORA, with Failure to Register or to Verify on each Anniversary of Initial Registration 1st Offense and Failure to Register within Ten Days after any Change of Address 1st Offense, for conduct occurring on or about December 4, 2006, and with Failure to Register or to Verify on each Anniversary of Initial Registration 2nd Offense for conduct occurring on or about December 4, 2007.
Under the Connecticut statute to which Defendant pled guilty, CGS 54-253, any person who has been convicted of a sex offense and resides in Connecticut on and after October 1, 1998 must register with the Commissioner of Public Safety without undue delay. Thus, pursuant to the statutory scheme of the two states, Defendant was required to register annually in New York, the state where he was convicted, and in Connecticut, the state to which he moved.
Defendant argues that while the New York charges involve distinct "offenses," all of these offenses are part of the same "criminal transaction" as defined by CPL § 40.10(2). (Defendant's Memo 4). Defendant contends that because Defendant had a single purpose and objective underlying all the offenses, i.e. Defendant's desire to move out of New York and avoid compliance with the sex offender registration laws, and there was no temporal break or change of circumstances separating the offenses, ...