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People v. Diaz

Supreme Court of New York, First Department

April 13, 2017

The People of the State of New York, Respondent,
v.
Frederick Diaz, Defendant-Appellant.

         Defendant appeals from the order of the Supreme Court, Bronx County (Raymond L. Bruce, J.), entered November 4, 2015, which adjudicated him a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C).

          Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant.

          Darcel D. Clark, District Attorney, Bronx (Andrew J. Zapata and Nancy Killian of counsel), for respondent.

          Richard T. Andrias, J.P., Karla Moskowitz, Barbara R. Kapnick, Troy K. Webber, Marcy L. Kahn, JJ.

          ANDRIAS, J.P.

         Pursuant to Correction Law § 168-a(2)(d)(ii), defendant was required to register as a sex offender in New York based on his conviction in Virginia of murder in the first degree of a victim under 15 years of age, even though the crime did not involve any sexual motivation or conduct. For the reasons discussed below, we find that Correction Law § 168-a(2)(d)(ii), as applied under the specific facts of this case, violates defendant's substantive due process rights under the Federal and New York State Constitutions (US Const, Amend XIV, § 1; NY Const, art I, § 6), and that his adjudication as a sex offender in New York should be annulled.

         On December 22, 1989, defendant, then 19, shot and killed his 13-year-old half sister after she threw out his stash of drugs and reprimanded him about his drug dealing. On May 23, 1990, defendant was convicted in Virginia, upon his plea of guilty, of first degree murder (Va Code Ann § 18.2-32) and using a firearm in the commission of a felony (id. § 18.2-53.1), and sentenced to an aggregate term of 40 years.

         On April 13, 2015, defendant was paroled. Although the underlying offenses did not have any sexual component, defendant was required to register in Virginia under its Sex Offender and Crimes Against Minors Registry Act (Va Code Ann § 9.1-900 et seq.) solely because his half sister was under 15 years of age when he murdered her (id. § 9.1-902[A][D]).

         Days after his release, defendant moved to the Bronx to live with his father and brother. Defendant's sister, her husband and their son resided in the same apartment building and defendant also had numerous other relatives in New York.

         Defendant's murder conviction would not have required registration had the crime had been committed in New York. However, the Board of Examiners of Sex Offenders (Board) required him to register pursuant to Correction Law § 168-a(2)(d)(ii), which mandates registration for those convicted 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" (emphasis added).

         The Board prepared a risk assessment instrument assessing 75 points for defendant. While this would warrant a presumptive risk level two classification, pursuant to the Sex Offender Registration Act (SORA) Risk Assessment Guidelines and Commentary, the Board recommended an automatic override to level three because defendant "inflicted death to the victim." After a hearing, the SORA court found clear and convincing evidence to assess 65 points (presumptively level one) and to impose the automatic override to level three.

         The Board's determination that defendant's out-of-state conviction requires registration is reviewable in this risk level proceeding (see People v Liden, 19 N.Y.3d 271');">19 N.Y.3d 271 [2012]). Because there is no fundamental constitutional right to be free from being stigmatized or branded a sex offender or from having one's reputation impaired, a "rational basis" test (as opposed to "strict scrutiny") is the correct level of review for defendant's claim that Correction Law § 168-a(2)(d)(ii), as applied, violates his substantive due process rights (see People v Knox, 12 N.Y.3d 60, 68-69 [2009], cert denied [2009]). Thus, we must consider whether requiring defendant to register as a sex offender in New York, based on a conviction of a crime that did not have any sexual component but which required registration in Virginia under a broader statute that covers both sex crimes and crimes against minors, is rationally related to the achievement of some conceivable, legitimate, governmental purpose (id.).

         When SORA was enacted, registration was required only for out-of-state felony convictions with the same essential elements as New York crimes requiring registration (see L 1995, ch 192, § 2). In 1999, the legislature added section 168-a(2)(d)(ii) (see L 1999, ch 453) to require registration for out-of-state sex offender felonies that have no New York equivalent (see Matter of Kasckarow v Board of Examiners of Sex Offenders of State of N.Y., 33 Misc.3d 1028, 1035 [Sup Ct, Kings County 2011], affd 106 A.D.3d 915');">106 A.D.3d 915 [2d Dept 2013], affd 25 N.Y.3d 1039');">25 N.Y.3d 1039 [2015]). "There are two elements to th[e] subsection: first, the underlying offense must be a felony; second, the offender must be required to register as a sex offender in the other jurisdiction as a result of that conviction" (People v Kennedy, 7 N.Y.3d 87, 91 [2006] [emphasis added]).

         The People argue that a rational basis underlies the application of section 168-a(2)(d)(ii) to defendant because (i) "[b]y amending the Correction Law to include this provision, the Legislature could have been attempting to prevent New York from becoming a haven for sex offenders escaping registration in foreign jurisdictions by simply moving here, " and (ii) "[t]he Virginia legislature could have been concerned with the prevalence of a sexual motivation or component to the murder of children under the age of fifteen." However, defendant's murder of his half sister did not have a sexual component and, most significantly, the New York Legislature has not seen fit to include the murder of a victim under 15 years of age as a crime that, in and of itself, would require registration as a sex offender if committed in New York. Although defendant is required to register in Virginia, the Virginia statute and registry is broader, covering both sex offenses and crimes against minors, and there is no persuasive evidence in the record correlating the murder of a victim under 15 with the propensity to commit sexual offenses. Under these particular circumstances, ...


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