People v. Patterson

ETHAN GREENBERG, J. Defendant Charles Patterson is charged with the crime of failure to register as a sex offender pursuant to the Sex Offender Registration Act (SORA), sometimes known as "Megan's Law."^[1] He now moves to dismiss the complaint in this case on the ground that it is facially insufficient. Defendant's motion raises two interesting issues with respect to this complex and still relatively new law, namely: (1) the proper geographical jurisdiction for a prosecution for failure to register, and (2) in such a prosecution, the extent to which the People must plead and ultimately prove that a previously convicted sex offender acted intentionally when violating his duty to register.^[2] Defendant's motion to dismiss shall be denied. As detailed below, the court finds first that defendant may be prosecuted in Bronx County—the county where his original sex crime was committed and where he still lives—even though the Sex Offender Monitoring Unit where defendant failed to register as a sex offender was located in New York County. Bronx County has geographical jurisdiction over this case pursuant to the "injured forum" statute, CPL 20.40 (2) (c), because defendant's failure to register affects the Bronx in that the police and the community in the Bronx will not receive appropriate SORA notifications about defendant. However, in order to proceed with this prosecution in the Bronx under the "injured forum" statute, it will be the People's burden at trial to prove that defendant either intended or knew that his failure to register would affect the Bronx. This would not appear to be a simple matter for the People to prove, and proof of such knowledge or intent would not be a necessary element of the People's case if this case were instead prosecuted in New York County. Nevertheless, it is of course up to the People to decide whether as a practical matter it might be simpler and wiser to reinstitute this prosecution in New York County. Second, the court finds that the complaint in this case—which alleges that defendant signed a SORA form that set forth his duty to register at the appropriate location and date—satisfies any applicable requirement of notice or of mens rea. In that connection, this court disagrees with People v Manson (173 Misc 2d 806 [Crim Ct, NY County 1997]) which appears to require that in a failure-to-register prosecution under SORA the People must show that defendant understood his registration obligation and intentionally violated it. As detailed below, the better view is that SORA is a regulatory statute, designed to protect community safety, and that SORA imposes strict liability upon a sex offender who fails to register as required. Thus ignorance of SORA or of its particular requirements is not a defense to a charge of failure to register; and an assertion by a convicted sex offender that he did not correctly understand his registration obligation or did not consciously intend to violate the law is not a bar to prosecution and conviction under the statute. Rather, all that is required by SORA and by the constitutional principle of due process is that the People demonstrate that defendant was first given the statutorily mandated notice of his duty to register as a sex offender and that defendant thereafter violated that duty.

Generally speaking, the courts of the State of New York have territorial jurisdiction over any offense defined by the laws of New York where the alleged criminal conduct or some consequence thereof has occurred within the State. (CPL 20.20; People v McLaughlin, 80 NY2d 466 [1992].) The geographical jurisdiction of a given county within the State over an alleged crime is a question of venue. Geographical jurisdiction is not an element of that crime. (People v McLaughlin, supra ; Matter of Steingut v Gold, 42 NY2d 311 [1977]; People v Tullo, 34 NY2d 712 [1974]; People v Chaitin, 94 AD2d 705 [2d Dept 1983], affd 61 NY2d 683 [1984].) While the territorial jurisdiction of the State over a crime must be proved beyond a reasonable doubt, venue in a particular county need only be established by a preponderance of the evidence. (People v McLaughlin, 80 NY2d, at 470-472.) At trial "the burden is on the People to prove by a preponderance of the evidence the Bronx rather than in Manhattan, then they will have the burden at trial to prove their "injured forum" theory of jurisdiction by a preponderance of the evidence. (People v Ribowsky, 77 NY2d 284, supra.) Thus the People would be required to show at trial that defendant either intended or knew that his failure to register in Manhattan would frustrate the enforcement of SORA in the Bronx. That may not be a simple matter. It would appear that in order to proceed on such a theory the People would have to prove in essence that defendant understood how SORA works and further understood that his failure to register in Manhattan would necessarily frustrate SORA notification to the Bronx. That could be a very difficult row to hoe; the People would likely be met by the argument that very few lawyers, let alone criminal defendants, yet have a sound grasp of how SORA and the SORA notification process work. In short, the People's legal theory as to why a Bronx court could have geographical jurisdiction over this prosecution pursuant to CPL 20.40 (2) (c) is theoretically sound. Accordingly, defendant's motion to dismiss on jurisdictional grounds is denied. However, the People should be mindful that by proceeding on an "injured forum" theory in the Bronx, they are assuming a burden of proof at trial concerning the jurisdiction issue that would not be theirs if this case were prosecuted in Manhattan. That burden may prove difficult to meet. In view of the foregoing, the People might do well to consider bringing this prosecution (or future similar prosecutions) in New York County instead of the Bronx.

The second ground for defendant's motion to dismiss is that the complaint is insufficient because it does not allege that defendant's failure to register as a sex offender pursuant to SORA was knowing and intentional. Defendant relies in this regard upon People v Manson (173 Misc 2d 806 [Crim Ct, NY County 1997], supra). That case does hold that an accusatory instrument charging failure to register must allege that the defendant knowingly and intentionally failed to register as required. (People v Manson, 173 Misc 2d, at 812, 815-816; accord, People v Peterson, NYLJ, Apr. 29, 1999, at 32, col 2 [Sup Ct, Kings County].) The People, for their part, disagree with Manson (supra). They argue that this court should find that failure to register under SORA is a strict liability crime, and that the complaint in this case satisfies any applicable requirement of notice or knowledge because the complaint alleges that defendant signed a written form that expressly advised him of his duty to register under SORA. The question presented then is whether failure to register is a strict liability crime. The question is important because it will likely shape the future enforcement of SORA. It is an interesting question as a legal and intellectual matter, and the answer is not free from doubt. Upon consideration, this court concludes first that the failure-to-register statute, Correction Law § 168-t, does create a strict liability crime. Thus the People do not need to allege or prove that a sex offender charged with failure to register acted knowingly or intentionally. However, when section 168-t is read in conjunction with the whole of SORA, it is nevertheless plain that before a defendant can be prosecuted for failure to register, he must first be given the statutorily mandated notice of his duty to register as a sex offender. Such notice is also likely required by due process of law. (See, Lambert v California, 355 US 225 [1957].) Accordingly, the court further concludes that a misdemeanor accusatory instrument charging failure to register must allege that such notice was given.

necessary to provide defendants with reasonable notification that their actions are subject to strict regulation. In such cases * * * [the Legislature] is presumed to have placed the burden on defendants who have received such notice to `ascertain at [their] peril whether [their conduct] comes within the inhibition of the statute.'" (United States v Figueroa, 165 F3d 111, 116-117 [2d Cir 1998, Sotomayor, J.], supra, quoting United States v Balint, 258 US 250, 254, supra.)

Bronx County does have geographical jurisdiction over this case pursuant to the "injured forum" statute. Failure to register under SORA is a strict liability crime. There is no requirement that the People allege that defendant Patterson acted knowingly or intentionally. However, the People are required to plead and later prove that defendant was given notice of his duty to register. Measured against this standard, the complaint against defendant Patterson is clearly sufficient because the complaint alleges first that defendant was provided with and signed a SORA form that expressly notified him of his registration obligation, and second that defendant thereafter failed to register. Defendant's motion to dismiss is denied. [1] The Sex Offender Registration Act, Correction Law §§ 168 through 168-v, became law in 1996. The background and operation of the statute have been discussed and ably summarized in numerous decisions, including Doe v Pataki (120 F3d 1263 [2d Cir 1997], cert denied 522 US 1122) and People v Stevens (91 NY2d 270 [1998]). In the interest of brevity, this decision assumes familiarity with these matters. [2] There are a number of apparent problems with the complaint herein that were not raised by defendant in his current motion papers and not addressed by the People in their motion response. Accordingly, this decision is limited to the issues raised by defendant in his present motion to dismiss. [3] According to the People's motion response, it was not and is not possible for defendant to register in the Bronx. Any offender in any of the five boroughs of New York City who attempts to register will be directed to the Sex Offender Monitoring Unit in Manhattan. [4] More specifically, Correction Law § 168-g (2) provides in substance in relevant part that any sex offender already on probation on January 21, 1996 who "fails or refuses to [register] shall be subject to the same penalties * * * which would be imposed upon a sex offender who fails or refuses to comply with the provision of this article on or after such effective date." (Emphasis added.) [5] It might be argued that SORA's failure-to-register provision would pass constitutional muster under Lambert (supra) even in the absence of SORA's notice provisions. Part of the difficulty with the historical general criminal registration statutes like the Los Angeles Ordinance at issue in Lambert (supra) was that they were, for the most part, local laws enacted in scattered American cities and towns. Thus it was difficult to say that a convicted criminal who was moving about the country would have fair warning that a particular town had such a law. (See, Note, op. cit., 103 U Pa L Rev, at 82-85.) SORA is different. It is a State-wide law. Moreover, all 50 States have now adopted somewhat similar sex offender registration laws in order to meet the requirements of 42 USC § 14071, the Federal Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program. As time goes on and these State laws lose their novelty, it will be increasingly difficult to say that sex offenders do not have fair warning that sex offender registration laws exist, even in the absence of mandatory individual notice requirements like those set out in SORA.