Defendant: Natalie Rea, Esq. The Legal Aid Society.
the People: Assistant District Attorney Caitlin Nolan.
10:15 a.m. on September 30, 2013 on Third Avenue near East
28th Street in Manhattan, the defendant forcibly shoved a
forty-one-year-old hearing-impaired woman into the wall of a
building. The woman, who was suffering from Multiple
Sclerosis, and who had been walking with a cane and service
dog, crashed to the sidewalk as the defendant attempted to
wrest the cane from her hand. As the woman lay on the
pavement, the defendant stood over her, exposed his penis,
and ordered her to "suck it, suck my dick."The
defendant was indicted for his conduct and subsequently
entered a plea of guilty to Attempted Robbery in the Second
Degree as a Sexually Motivated Felony, in full satisfaction
of the nine-count indictment pending against him. On April 1,
2014, the defendant was sentenced as a second felony offender
to a determinate term of imprisonment of three years to be
followed by five years post-release supervision.
before the defendant's release from state prison in this
case, he moved to preclude the then-pending Sex Offender
Registration Act ("SORA") Risk Level Determination
hearing, contending that the crime for which he was convicted
- Attempted Robbery in the Second Degree as a Sexually
Motivated Felony - does not constitute a "sex
offense" for which registration under SORA is required.
The People opposed the defendant's motion, arguing that
any individual convicted of a Sexually Motivated Felony must
register as a sex offender. Based on the myriad papers filed
by the parties over the course of several months and for the
reasons that follow, the defendant's motion is granted.
begin, while the defendant's motion relates specifically
to a provision of SORA, the current incarnation of the
statute is a result of amendments made to it in 2007 by the
Sex Offender Management and Treatment Act (hereinafter
"SOMTA"). The instant analysis must, therefore,
begin with SOMTA. SOMTA "establish[ed] comprehensive
reforms to enhance public safety" creating, inter
alia, a new category of crime, "Sexually Motivated
Felony." See Sponsor's Memo, 2007 NY
Senate-Assembly Bill S03318, A06162. To be sure, the intent
of the new law, as articulated in the Sponsor's Memo is
clear - to protect the public from sex offenders by requiring
individuals convicted of this new category of crime to be
registered under SORA. Id. Indeed, according to the
aforementioned Sponsor's Memo, section twenty-two of
SOMTA "amends the list of registerable crimes [under
SORA] so that a defendant convicted of a Sexually Motivated
Felony [is] required to register [as a sex offender]."
Id. In so doing, the Legislature added to the list
of offenders who must register, those offenders convicted of
certain non-sexual offenses that, nonetheless, bear the mark
of a sex offense by the manner in which they are committed.
Although the Sponsor's Memo makes plain that the purpose
of SOMTA was to cast a wider net and expand the number of sex
offenders required to register under SORA, a careful reading
of the amended statute reveals SOMTA may have missed its
intended mark. Indeed, SORA reads, inter alia,
(a)(i) a conviction of or a conviction for an attempt to
commit any of the provisions of sections 120.70, 130.20,
130.25, 130.30, 130.40, 130.45, 130.60, 230.34, 250.50,
255.25, 255.26 and 255.27 or article two hundred sixty-three
of the penal law, or section 135.05, 135.10, 135.20 or 135.25
of such law relating to kidnapping offenses, provided the
victim of such kidnapping or related offense is less than
seventeen years old and the offender is not the parent of the
victim, or section 230.04, where the person patronized is in
fact less than seventeen years of age, 230.05 or 230.06, or
subdivision two of section 230.30, or section 230.32 or
230.33 of the penal law, or (ii) a conviction of or a
conviction for an attempt to commit any of the provisions of
section 235.22 of the penal law, or (iii) a conviction of or
a conviction for an attempt to commit any provisions of the
foregoing sections committed or attempted as a hate crime
defined in section 485.05 of the penal law or as a crime of
terrorism defined in section 490.25 of such law or as a
sexually motivated felony defined in section 130.91 of such
law...". Correction Law § 168-a(2). (emphasis
absence of a critical grammatical signpost, a parenthetical
number preceding "as a sexually motivated felony, "
seemingly limits the qualifying Sexually Motivated Felony
offenses only to those enumerated in subsections (i) and
(ii). By omitting a "(iv)" before the term
"sexually motivated felony" in SORA, the term
appears to be modified by the "foregoing sections,
" thus excluding Attempted Robbery in the Second Degree
(among other sexually motivated offenses) from the
registration requirements under the statute - not likely the
result the Legislature intended, as many of the offenses
enumerated in subsections (i) and (ii) are sex offenses and
already registerable. It is difficult to fathom that the
Legislature amended SORA to require already registerable sex
offenders to register under SORA - this tautologic redundancy
seems pointless. It is equally difficult to fathom that the
Legislature purposefully omitted the type of conduct the
defendant committed here - attacking a woman with physical
disabilities and demanding that she "suck his dick"
as she lay on the ground immobilized - from the mandates of
SORA. While the Legislature seemingly intended to require
registration for all sexually motivated felonies, that is
simply not what the language of the amended statute conveys.
This Court is constrained, therefore, to find that, on its
face, SORA does not include Attempted Robbery in the Second
Degree as a Sexually Motivated Felony. Thus, unless and until
the statute is amended, the defendant need not register as a
sex offender in connection with this matter.
the defendant's motion to preclude the SORA Risk Level
Determination hearing is granted. 
constitutes the Decision and Order of the Court.
 While it appears the defendant's last
name is correctly spelled Lawrence, the indictment in this
matter was filed using the spelling captioned above.
 The defendant had 4 prior felony
convictions at the time, including Failure to Report as a Sex
Offender, and 30 prior misdemeanor convictions ...