People v Wing Dong Moi

[*1] People v Wing Dong Moi 2005 NY Slip Op 51068(U) Decided on June 3, 2005 County Court, Westchester County Bellantoni, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 3, 2005
County Court, Westchester County

PEOPLE OF THE STATE OF NEW YORK

against

Wing Dong Moi,



1114-87



Westchester County

Office of the District Attorney

Richard J. Daronco Courthouse

111 Dr. Martin Luther King, Jr. Blvd.

White Plains, New York 10601

Kim Frohlinger, Esq.

Attorney for Defendant

648 Central Park Avenue

Scarsdale, New York 10583

Wing Dong Moy

20 Confucius Plaza, Apt. 43G

New York, New York 10002

The Division of Criminal Justice Services

Sex Offender Registry

4 Tower Place

Albany, New York 12203

Attn: Pam Gaitor

The Legal Aid Society

199 Water Street, 6th Floor

New York, New York 10038

Attn: Susan L. Hendricks

Rory J. Bellantoni, J.

This proceeding raises the question whether the provision of New York's Sex Offender Registration Act ("SORA"), which requires defendants who have been convicted of certain kidnapping offenses to register as sex offenders, is constitutional as applied to defendant Wing Dong Moy [FN1] ("Defendant"). NY CORRECT. Law, Article 6-C, §168-a(2)(a).

Defendant was classified as a level three sex offender by the New York State Board of Examiners of Sex Offenders on January 12, 1996. Pursuant to the Stipulation of Settlement in Doe v. Pataki, 96 Civ. 1657 (DC), ("the Stipulation"), a Risk Level Redetermination Hearing Request Form ("Form") was mailed by the court to Defendant.[FN2] Defendant returned the Form and indicated that he wished to challenge his risk level and requested a redetermination hearing. At the hearing initially scheduled in this matter for December 15, 2004, Defendant asserted that SORA should not apply to him when the crime for which he was convicted has no sexual component. This court afforded the parties an opportunity to brief this issue.

The facts underlying this proceeding are uncontested. On or about April 11, 1989, Defendant pleaded guilty to one count of kidnapping in the second degree, a class B felony. NY PENAL LAW §135.20.[FN3] In or around June 1989, Defendant was sentenced to an indeterminate term of imprisonment of 2- 6½ years. The conviction arose from an incident where Defendant and several members of a gang forced two members of a rival gang, both males, into the vehicle [*2]of one of Defendant's fellow gang members. The victims, 15 and 16 years of age, were taken away in a vehicle by other members of Defendant's gang and then shot and killed. Defendant did not accompany the victims in the car. At the time of the incident, Defendant was 18 years old. Defendant, who had been released from prison on October 21, 1991, was notified in 1996 after the enactment of SORA, that he was required to register as a level three sex offender since he was convicted of kidnapping two persons seventeen (17) years of age and under, when he was not a parent of the victims. NY CORRECT. LAW §168-a(2)(a).[FN4]

In his moving papers, Defendant contends, inter alia, that based upon People v. Bell, 3 Misc 3d 773, 778 NYS2d 837 (Sup. Ct. Bronx. Co. 2003), the application of SORA to him violates his Constitutional right to due process. U.S. Const., Amends. V & XIV; NY Const., Art I., § 6. In support of his due process claim, Defendant asserts that his fundamental rights are being infringed by SORA due to his classification as a level three sex offender in that said classification allegedly results in a potential loss of employment, and inability to improve his current employment. In addition, Defendant claims that these asserted rights are substantial, and that he has an interest in not being "branded a pedophile" and sex offender, and having personal information, including his photograph, disseminated for the remainder of his life.

Defendant also asserts that if his community were to find out about his status as a sex offender, it would have negative social consequences upon his family. Defendant fears the impact such information would have upon his children, how they would be perceived, and whether other children would socialize with them. Defendant also fears that his family would be ostracized due to the classification.

Finally, Defendant asserts that his classification as a sex offender violates his right to equal protection. U.S. Const., Amend XIV; NY Const., Art I., §11. The People assert that SORA is constitutional as applied to Defendant and that the government has an interest in requiring those convicted of certain kidnapping offenses to register as sex offenders.

An analysis of Defendant's claim first requires that this court examine New York's Sex Offender Registration Act.

The Sex Offender Registration Act

SORA was enacted by the legislature in 1996 as a means of providing the public with information regarding the whereabouts of convicted sex offenders. Those convicted of certain offenses are considered sex offenders and must comply with the statute's registration [*3]requirement.[FN5]

SORA requires that any convicted sex offender, within 10 days upon release from confinement, or upon the imposition of sentence where the offender is on probation, register with the Division of Criminal Justice Services. NY CORRECT. LAW §168-f (1). Failure to register is a Class A misdemeanor for the first offense, and upon conviction of a second or subsequent offense, a Class D Felony. In addition, failure to register or verify may be the basis for revocation of the sex offender's parole. NY CORRECT. LAW §168-t.

The duration of registration for sex offenders who are not designated sexual predators, sexually violent offenders, or predicate sex offenders, or who, as of March 11, 2002, were classified as a level one or level two risk shall be annually for 10 years from the initial date of registration. NY CORRECT. LAW §168-h (1). For those offenders who, on or after March 11, 2002, are designated sexual predators, or sexually violent offenders, or predicate sex offenders, or who, as of March 11, 2002, are classified as a level three risk, the registration shall be annually for life. NY CORRECT. LAW §168-h(2). In addition, a level three sex offender must personally verify his or her address every ninety (90) days with the local law enforcement agency having jurisdiction where the offender resides. NY CORRECT. LAW §168-h(3).

Designation of sex offenders as level one, two, or three carries with it various notification requirements by the Division of Criminal Justice Services to local law enforcement agencies who may then disseminate such information to the public based upon the sex offender's designation level.

Where the risk of repeat offense is low, a level one designation is assigned, and in such [*4]cases only the local law enforcement agency having jurisdiction, and the local law enforcement agency having had jurisdiction at the time of the offender's conviction, are to be notified. NY CORRECT. LAW §168-l(6)(a).

Where the risk of repeat offense is moderate, a level two designation is given to such sex offender. In the case of a level two offender, the law enforcement agency having jurisdiction, and the law enforcement agency or agencies having had jurisdiction at the time of his or her conviction, are to be notified. In addition, these local law enforcement agencies may disseminate relevant information to any entity with vulnerable populations that a level two sex offender resides in the community. The entities in turn may disseminate such information at their discretion. NY CORRECT. LAW §168-l(6)(b). The relevant information includes the name of the sex offender, approximate address based on the offender's zip code, a photograph of the offender, background information including the offender's crime of conviction, modus operandi, type of victim targeted, the name and address of any institution of higher education at which the sex offender is enrolled, attends, is employed or resides, and the description of special conditions imposed on the offender. NY CORRECT. LAW §168-l(6)(b); In re Nadel, 188 Misc2d 427, 724 NYS2d 262 (Sup. Ct. NY Co. 2001); People v. Jimenez, 178 Misc2d 319, 679 NYS2d 510 (Sup. Ct. Kings Co. 1998).

Where the risk of repeat offense is high and there is a threat to the public safety, a level three designation is given to the sex offender. The defendant herein was initially classified as a level three sex offender. Defendant's contention is that he should not be classified as a sex offender when he has not committed a sexual offense.

In the case of a level three sex offender, the law enforcement agency having jurisdiction, and the law enforcement agency or agencies having had jurisdiction at the time of his or her conviction, shall be notified and may disseminate relevant information to any entity with vulnerable populations that a level three sex offender resides in the community. The entities, in turn, may disseminate such information at their discretion. NY CORRECT. LAW §168-l(6)(c). The relevant information may include the sex offender's name, exact address, address of place of employment, photograph, crime of conviction, modus operandi, type of victim targeted, the name and address of any institution of higher education at which the sex offender is enrolled, attends, is employed or resides, and the description of special conditions imposed on the offender. In addition, for level three sex offenders, the information shall be provided in a subdirectory and such information is available to the public upon request via the internet. See NY CORRECT. LAW §§168-l(6)(c), 168-q(1); Jimenez, 178 Misc2d at 322, 679 NYS2d at 513. The Division shall distribute monthly updates of information in the subdirectory to local village, town, city, county or state law enforcement agencies for purposes of public access. NY CORRECT. LAW §168-q(1).

A level three sex offender, or one who has been designated as a sexual predator, must personally verify his or her address with the local law enforcement agency every ninety (90) [*5]calendar days after the date of release, or commencement of parole or post-release supervision, probation, release on payment of a fine, or conditional discharge or unconditional discharge. The duty to personally verify is suspended when the sex offender is confined to a correctional facility, hospital or institution and recommences on the date of the sex offender's release. NY CORRECT. LAW §168-f (3).

Finally, SORA requires that information about all sex offenders, irrespective of level classification, be available to any member of the public who calls a designated "900" number. NY CORRECT. LAW §168-p. Information about level three registered sex offenders is also readily available on the internet.

It is against this backdrop that the court shall now turn to an analysis of Defendant's claim that SORA violates his right to due process and equal protection as guaranteed to him by the Constitution of the United States and the State of New York. U.S. Const., Amends. V & XIV; NY Const., Art I., §§ 6, 11.

Legal Analysis

Turning first to Defendant's claim that SORA violates his right to due process, it is well established that the Due Process Clause of the United States Constitution provides that one may not be deprived of life, liberty, or property without due process of law. U.S. Cons. Amend. XIV, §1; Doe v. Pataki, 3 F. Supp. 2d 456, 466 (S.D.NY 1998). The Due Process Clause contains both a procedural and substantive component. The procedural aspect of the Due Process Clause requires that, prior to a deprivation of life, liberty, or property, a person must be afforded due notice and an opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18 (1976).

The substantive component, however, protects individuals from arbitrary government action, which is action that is "conscience-shocking, or oppressive in a constitutional sense, but not against government action that is 'incorrect or ill-advised.'" Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994), citing Bishop v. Wood, 426 U.S. 341, 350, 96 S. Ct. 2074, 2080, 48 L. Ed. 2d 684 (1976); Interport Pilots, 14 F.3d 133, 144 (2d Cir. 1994). Substantive due process standards are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority. Harlen Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 505 (2d Cir. 2001), quoting Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999). As the Second Circuit has noted: Substantive due process is an outer limit on the legitimacy of governmental action. It does not forbid governmental actions that might fairly be deemed arbitrary or capricious and for that reason correctable in a state court lawsuit seeking review of administrative action. Substantive due process standards are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority.

[*6]Natale, 170 F.3d at 262, citing Co. Of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S. Ct. 1708, 1716, 140 L. Ed. 2d 1043 ("[O]nly the most egregious official conduct can be said to be arbitrary in the constitutional sense."); Silverman v. Barry, 845 F.2d 1072, 1080 (D.C. Cir.), cert denied, 488 U.S. 956, 109 S. Ct. 394, 102 L. Ed. 2d 383 (1988).

Defendant does not assert that his procedural due process rights have been violated, but that he was denied his right to substantive due process since he has been required to register as a sex offender when the crime for which he was convicted has no sexual component.

The first issue this court must address is what level of scrutiny is applicable to Defendant's constitutional claims. Where a defendant identifies a fundamental right being infringed by a statutory scheme, the statute will be upheld only where it is narrowly tailored to serve a compelling state interest. Indeed, it is well settled that where fundamental rights are involved, regulations limiting such rights may be justified only by a compelling state interest, Immediato v. Rye Neck School Dist., 73 F.3d 454, 460 (2d Cir. 1996), cert. denied, 519 U.S. 813, 117 S. Ct. 60, 136 L. Ed. 2d 22 (1996), citing Reno v. Flores, 507 U.S. 292, 302, 113 S. Ct. 1439, 1447, 123 L. Ed. 2d 1 (1993), and legislative enactments affecting fundamental rights must be narrowly tailored to express only the legitimate state interests at stake. Roe v. Wade, 410 U.S. 113, 155, 93 S. Ct. 705, 728, 35 L. Ed. 2d 147, citing Griswold v. Connecticut, 381 U.S. 479, 485, 85 S. Ct. 1707, 1682, 14 L. Ed. 2d 484 (1965); Aptheker v. Secretary of State, 378 U.S. 500, 508, 84 S. Ct. 1659, 1664, 12 L. Ed. 2d 992 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307-308, 60 S. Ct. 900, 904-905, 84 L. Ed. 1213 (1940); Eisenstadt v. Baird, 405 U.S. 438, 460-64, 92 S. Ct. 1029, 1042-44, 31 L. Ed. 2d 349 (1972) (White, J., concurring).

Where, however, no fundamental right is at issue, a defendant's constitutional claims are to be analyzed under what is commonly termed the rational basis test, that is, the government may regulate rights and liberties so long as the governmental action bears a rational relationship to a legitimate governmental interest. F.C.C. v. Beach Communications Inc., 508 U.S. 307, 313, 113 S. Ct. 2096, 2100, 124 L. Ed. 2d 211 (1993); O'Bradovich v. Village of Tuckahoe, 325 F. Supp. 2d 413, 429 (S.D.NY 2004).

The question, therefore, is whether Defendant's alleged due process and/or equal protection violations implicate a fundamental right sufficient to trigger a strict scrutiny analysis. Defendant asserts that his constitutionally protected liberty interest is at stake in this proceeding in that his registration as a level three sex offender allegedly results in a potential loss of employment, and inability to improve his current employment. In addition, Defendant asserts that his registration as a level three sex offender may result in negative social consequences to him and his family.

Fundamental rights have been defined by our Federal Courts as consisting of only those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that "neither liberty nor justice would exist if [it] were sacrificed." Lawrence v. Texas, 539 U.S. 558, 593, 123 S. Ct. 2472, [*7]2492, 156 L. Ed. 2d 508 (2003), citing Washington v. Glucksberg, 521 U.S. 702, 721, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997).

In general, our Federal Courts have identified the following rights as "fundamental" and therefore deeply rooted in our nation's history: the right to privacy, the right to marry, the right to vote, the freedom to travel, and the freedom of association. Savino v. Co. of Suffolk, 774 F. Supp. 756, 758 (1991), citing Roe, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1978), Bullock v. Carter, 405 U.S. 134, 92 S. Ct. 849, 31 L. Ed. 2d 92 (1972), Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969), N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958). Likewise, the right to make choices regarding one's sexuality, and the right of parents to make decisions regarding the care, custody and control of their children are protected fundamental rights. Lawrence, 539 U.S. at 567, 123 S. Ct. at 2478, 156 L. Ed. 2d at 508 (the liberty protected by the Constitution allows homosexual persons the right to make choices concerning their sexuality); Griswold, 381 U.S. at 485, 85 S. Ct. at 1682, 14 L. Ed. 2d at 510; Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49 (2000) ("The liberty interest at issue in this casethe interest of parents in the care, custody, and control of their childrenis perhaps the oldest of the fundamental liberty interests recognized by this Court.")

Although there is little case law directly on point, at least one New York court has held that the rights implicated by registration under SORA are fundamental, such that a defendant's constitutional claim must be analyzed under the strict scrutiny standard. People v. Bell, 3 Misc 3d 773, 782-783, 778 NYS2d 837, 845 (Sup. Ct. Bronx. Co. 2003).[FN6] Defendant relies almost exclusively upon the Bell decision in asserting that New York's Sex Offender Registration Act is unconstitutional as applied to him. Defendant claims, based upon Bell, that his liberty interests are being infringed and that these liberty interests rise to the level of a fundamental right.[FN7]

This court, however, does not agree with that part of the Bell decision that found that [*8]SORA implicates a fundamental right. The decision in Bell suggests that because the defendant therein identified a liberty interest, SORA implicated a fundamental right. Bell, 3 Misc 3d at 782, 778 NYS2d at 845 (given "the specific enumeration by Defendant of the special parole 'conditions' he is now or will be subject to, Mr. Bell has satisfied the requirement of showing 'defamation-plus' by providing a 'careful description' of the asserted fundamental liberty interest that is implicated by the S.O.R.A.").[FN8] A fundamental right, however, is not implicated every time a governmental regulation intrudes on a person's liberty; indeed, although a defendant may identify a liberty interest, not every liberty interest rises to the level of a fundamental right. Immediato, 73 F.3d at 463 ( "[a]lthough substantive due process rights are guaranteed to an individual, in part, through the liberty component of the Due Process Clause . . . this does not mean that a fundamental right is implicated every time a governmental regulation intrudes on an individual's 'liberty.' ").[FN9]

Defendant's assertions herein are that his liberty interests have been infringed to the extent that his fundamental rights are implicated. These assertions are without merit. The liberty interests asserted by Defendant, which concern his employment, are not so deeply rooted in our nation's history to warrant protection as fundamental rights. See, Savino, 774 F. Supp. at 758, and cases cited therein.

Additionally, through his near exclusive reliance on Bell, and through his allegation "I am frightened that neighbors and friends will shun us . . . . I am afraid that our children will be ostracized, that their friends may not be allowed in our home, and that people will talk about us behind our backs", Defendant implicitly asserts that his right to Freedom of Association has been infringed (Defendant's affidavit ¶13). Footnote 3 in the Bell decision indicates that the court based its decision, in part, on a violation of Bell's right to Freedom of Association, in that it states, "Mr. Bell does not specifically aver it, but the restrictions on his being allowed to be with children or even open his door after 4:00 p.m. on certain holidays, such as Halloween, also appear to implicate his constitutionally-protected 'freedom of association'". Bell, 3 Misc 3d at 782, 778 NYS2d at 845, n 3. [*9]

To the extent that the defendant herein alleges his right to Freedom of Association has been infringed by SORA, this court disagrees with the assertion that one's right to Freedom of Association is implicated by SORA's registration requirements. The right to Freedom of Association guarantees individuals the right to join together to advocate opinions free from governmental interference. New Creation Fellowship of Buffalo v. Town of Cheektowaga, 2004 WL 1498190 (W.D.NY 2004), citing Roberts. v. Jaycees, 468 U.S. 609, 622, 109 S. Ct. 3244, 82 L. Ed. 2d 462 (1984) ("we have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends"); Burt v. Rumsfeld, 322 F. Supp. 2d 189 (D. Conn. 2004) ("associational freedom is 'crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular ideas'", quoting Boy Scouts of America v. Dale, 530 U.S. 640, 647-48, 120 S. Ct. 2446, 147 L. Ed. 2d 554). As the Supreme Court has noted:

The right of 'association,' like the right of belief (West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178), is more than the right to attend a meeting; it includes the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful.

Griswold, 381 U.S. at 483, 85 S. Ct. at 1681, 14 L.Ed2d at 510.

Simply put, the right to Association guarantees that individuals may gather to express their views on political, social or economic issues free from government interference. Accordingly, this court does not agree that SORA's registration requirements interfere with one's right to Freedom of Association. There is no constitutional right to have "trick-or-treaters" visit one's home on Halloween by virtue of the right to Freedom of Association, or any other constitutional right. Moreover, the restrictions imposed upon the defendant in the Bell case, which are identified in Footnote 3 of the Bell decision, are not imposed pursuant to SORA, but rather, are part of an offender's conditions of parole and/or probation.

Accordingly, this court finds that no fundamental right is implicated by SORA in that the harms alleged by Defendant herein do not implicate rights that are deeply rooted in our nation's history as to require protection as fundamental rights. Neither Defendant's explicitly asserted liberty interest, nor his implicit assertion that his right to Freedom of Association has been infringed, are sufficient to rise to the level of a fundamental right.

Defendant has failed to sustain his burden of demonstrating that a fundamental right is at issue. Fundamental rights consist only of those rights and liberties which are deeply rooted in this Nation's history and tradition, or implicit in the concept of ordered liberty. Lawrence, 539 U.S. at 593, 123 S. Ct. at 2492, 156 L. Ed. 2d at 506. The rights identified by Defendant, and those implicated by SORA, are not fundamental in that they simply are not akin to those rights [*10]that have been traditionally deemed fundamental under well-established Constitutional jurisprudence. See e.g., Troxel, 530 U.S. at 67, 120 S. Ct. at 2060, 147 L. Ed. 2d at 49; Zablocki, 434 U.S. at 374, 98 S. Ct. at 673, 54 L. Ed. 2d at 618; Roe, 410 U.S. at 113, 93 S. Ct. at 705, 35 L. Ed. 2d at 147; Bullock, 405 U.S. at 134, 92 S. Ct. at 849, 31 L. Ed. 2d at 92; Shapiro, 394 U.S. at 618, 89 S. Ct. at 1322, 22 L. Ed. 2d at 600; Griswold, 381 U.S. at 479, 85 S. Ct. at 1678, 14 L. Ed. 2d at 510; N.A.A.C.P., 357 U.S. at 449, 78 S. Ct. at 1163, 2 L. Ed. 2d at 1488; Savino, 774 F. Supp. at 758.

Indeed, other courts throughout the United States have held that legislation requiring the registration of sex offenders does not implicate any fundamental rights, and therefore constitutional claims regarding such statutes are to be analyzed under the rational basis standard. Gunderson v. Hvass, 339 F.3d 639 (8th Cir. 2003) (analyzing due process claim under rational basis standard finding that no fundamental right was at issue in sex offender legislation), cert. denied, 540 U.S. 1124, 124 S. Ct. 1086, 157 L. Ed. 2d 922 (2004); Haddad v. Fromson, 154 F. Supp. 2d 1085 (W.D. Mich. 2001) (analyzing equal protection claim under rational basis standard finding that no fundamental right was at issue concerning sex offender legislation); Lanni v. Engler, 994 F. Supp. 849, 855 (E.D. Mich. 1998) (analyzing equal protection claim under rational basis standard as sex offender statute did not implicate fundamental right); Doe v. Weld, 954 F. Supp. 425 (D. Mass 1996) (analyzing equal protection claim under rational basis standard finding that sex offender registration act did not implicate fundamental right) .

Accordingly, Defendant's constitutional claims for a violation of his right to due process and equal protection of the laws are to be analyzed under the rational basis test, which provides that where no fundamental right is at issue, the government may regulate rights and liberties where the governmental action bears a rational relationship to a legitimate governmental interest. Beach, 508 U.S. at 313, 113 S. Ct. at 2100, 124 L. Ed. 2d at 211; O'Bradovich, 325 F. Supp. 2d at 429.

This court finds that the provision of SORA, which requires those convicted of certain kidnapping offenses to register as sex offenders, does not itself violate the New York State Constitution, or United States Constitution, since it is rationally related to a legitimate governmental interest. It is beyond cavil that society has an interest in protecting vulnerable persons, namely children, from predators. To that end, kidnapping is a predatory offense, and therefore it is rational to have "kidnappers" register as sex offenders, particularly since many sex offenses are preceded by the crime of kidnapping. Thus, that provision of SORA requiring kidnappers to register as sex offenders is, on its face, rationally related to a legitimate state interest and therefore constitutional.

While this court disagrees with Defendant's reliance on Bell regarding the level of scrutiny to be utilized in evaluating Defendant's constitutional claims, it does agree with the Bell court's ultimate conclusion that it may be unconstitutional to apply SORA to a defendant who has been convicted of a kidnapping offense that is completely devoid of a sexual element based upon the specific facts and circumstances of that particular case. Bell, 3 Misc 3d 773, 778 [*11]NYS2d 837 ("to require [defendant] to register as a 'sex offender' is completely arbitrary and unreasonable, having no substantial relation to the public morals or general sexually-charged safety issues which the S.O.R.A. was enacted to safeguard against."). See also, State v. Reine, 2003 WL 77174 *5(Ohio App. 2 Dist. 2003) ("Because we conclude that the application of the statutory requirement that Reine be classified as a sexually oriented offender, in a case in which it has been stipulated that his offenses were committed without any sexual motivation or purpose, is unreasonable and arbitrary, and bears no rational relationship to the purpose of the statute, we conclude that it offends the Due Process clauses of both the Ohio and United States constitutions."); State v. Barksdale, 2003 WL 77115 (Ohio App. 2 Dist. 2003); State v. McClellan, 2002 WL 31160074 (Ohio App. 10 Dist. 2001); Robinson v. State of Florida, 804 So. 2d 451 (Fla. App. 4 Dist. 2001), aff'd, 873 So. 2d 1205 (2004); Raines v. State, 805 So. 2d 999 (Fla. App. 4 Dist. 2001).

Defendant has demonstrated that the statute, as applied to him, lacks a rational relationship to a legitimate state interest, and the People, in turn, have failed to sustain their burden of demonstrating that the the statute, as applied to Defendant in the case at bar, bears a rational relationship to a legitimate state interest.[FN10] The rational relation to a legitimate state interest, which the statute in fact possesses, evaporates when the facts of this case are applied thereto. It is uncontested that there was no sexual element to the crime that resulted in the instant Defendant's conviction. Indeed, there is not even the allegation of a sexual element. The Defendant herein submitted an affidavit and the People did not submit opposition to the facts set forth by Defendant.

Although Defendant accepts responsibility for the kidnapping of the two minors, it is uncontested that he did not get into the vehicle into which the victims were forced, driven away, and eventually killed. Nor is it contested that the crime lacked any sexual element. In addition, Defendant has no prior criminal history, either of a sexual nature or otherwise. Despite the foregoing, Defendant has been required to register as a level three sex offender, and therefore, have his name, exact address and a picture of him disseminated as a sex offender when he has not been convicted of a sexual offense.[FN11]

Under the particular facts of this case, there is no rational basis for having this defendant register as a sex offender when the crime for which he stands convicted has no sexual element whatsoever and Defendant has no history of committing sexual offenses. This court has reviewed and analyzed the bill jacket relating to the introduction of the Sex Offender [*12]Registration Act in the New York State Assembly and Senate in 1996.[FN12] Included therein is the New York Senate Introducer's Memorandum in Support of SORA submitted with, and in support of, the initial legislation, which states in pertinent part: Protecting the public, especially children, from sex offenders, is a primary governmental interest and the registration of sex offenders reentering the community is a control that helps protect individuals from victimization. This bill, with provisions based on the federal law and experiences of other states, represents a balanced and comprehensive approach to this effort.

It is abundantly clear that the purpose of SORA is to allow people to access information regarding whether a sex offender lives in their community. Its goal is to notify the public that those who have offended sexually are likely to re-offend in the same manner, and to provide the public with enough information to protect the most vulnerable among us, namely children, from sex offenders.

SORA's purpose, as derived from the statute's bill jacket, is to provide the public with information regarding sex offenders, not simply those convicted of felonies. The documents included in the bill jacket indicate that the purpose of SORA is to protect young children from sexual offenders. Indeed, the bill jacket repeatedly identifies sexual offenders as having the highest rate of recidivism among all offenders. The bill jacket indicates that the legislation was proposed in the wake of several brutal attacks on children (Memorandum in Support, pp. 2,3). In addition, the goal of the legislation is to provide "parents and guardians with helpful tools in safeguarding the welfare of their children." (Letter from Hon. Dean G. Skelos, dated July 11, 1995). The legislation focuses on sexual offenders and sexual predators and protecting young children from sexual predators (Letter from Hon. Daniel L. Feldman dated July 7, 1995). In addition, the Assembly Memorandum in support of the legislation states: "[s]exual offenses and sexual assault are among the most heinous of crimes and often the victims are those least able to protect and defend themselves children." (Assembly Memorandum p. 3).

The bill jacket demonstrates that SORA was enacted to protect children from sex offenders. In a letter to Hon. Michael Finnegan dated July 14, 1995, Mark Bonacquist, then counsel to the New York State Commission of Correction, wrote: "[t]he bill offers an approach to protect the public, especially children, from sex offenders. . . . ". The bill jacket continues with a Memorandum from then Attorney General Dennis C. Vacco to Governor Pataki, dated July 20, 1995, which states in part: "[a]lthough this bill extends protection to all victims of sexual predators, it will be especially helpful to our state's children and their families. . . . This bill seeks to prevent violent sexual attacks against children and adults before they occur and before they inflict irreparable injury and deep emotional scarring." A letter from Crime Victims United to Governor Pataki dated July 10, 1995, continues: "[t]he availability of a "900" [*13]telephone number . . . will help allay some of the fears and further protect women and children who have been sexually assaulted live [sic] their lives. This sends a very positive message to society. It also sends a clear message to the offenders that we as citizens will no longer tolerate sex offenses to be perpetrated against innocent victims." Finally, the Conservative Party of New York State wrote "[e]very precaution must be taken to protect our children from convicted sex offenders. This bill establishes a means for communities to provide significant protection to their families along with a valuable investigative tool for law enforcement personnel in the fight against child abductions and sex crimes."

In light of the foregoing, it is clear that SORA was enacted to protect the public from sexual predators, not simply from those offenders who commit felonies. The result herein, limited to its facts, would not have been the same had the legislature intended SORA to alert the community to the presence of dangerous criminals, rather than sex offenders and sexual predators. Had the legislature intended to protect the public from felony offenders it could have created a felony offender statute.

It is clear that the People have failed to demonstrate a rational basis for having Defendant register as a level three sex offender when the purpose of SORA is juxtaposed with the facts of this case. There is simply no rational basis for requiring Defendant to register every 30 days with his local police department as a level three sex offender. The court recognizes the interest the government has in protecting people from sexual offenders. Yet, there is not even an allegation that the crime at issue was committed for a sexual purpose. Defendant's actions herein do not raise the specter of a sexual offense. The undisputed facts of this case bear out the conclusion that the offense herein was committed amongst young men of rival gangs and that the minors who were forced into a car were not abducted for a sexual purpose. Consequently, there is no rational basis for having Defendant's photo placed on the internet in an effort to protect the community by notifying it that Defendant is a sex offender when Defendant has not committed any offense with a sexual component. Simply put, society is in no better position to protect itself from sex offenders if Defendant registers as a level three sex offender, when the crime for which Defendant was convicted has no sexual element.

The defendant herein has rebutted the presumption of legitimacy afforded to that provision of SORA requiring those convicted of certain kidnapping offenses to register as sex offenders. He has demonstrated through reliable, uncontested and uncontroverted evidence that there is no rational basis for having the statute apply to him as there was no sexual component to his crime neither completed nor contemplated.

Accordingly, as applied to Defendant, the People have failed to demonstrate that the kidnapping provision of SORA bears a rational relationship to a legitimate state interest and therefore, this defendant should not be subjected to that provision requiring him to register as a sex offender.

It must be understood that this court is not categorically stating that those convicted of [*14]kidnapping offenses should not register as sex offenders under SORA. This court certainly can conceive of instances where offenses lack a completed sexual element, but their surrounding facts and circumstances, including the defendant's prior criminal history, sexual history, psychological history, and the nature and characteristics of the victim, raise serious questions and concerns such that a defendant convicted of a kidnapping offense should be subject to SORA's registration requirements.

In each individual case where a defendant claims his/her registration under SORA violates a constitutional right, the court must take into consideration any and all facts and circumstances, and all logical conclusions that could be drawn therefrom, in determining whether factors exist that create a rational basis for the application of SORA's kidnapping provision to that particular defendant. It is only in the absence of such factors that a court should find the statute unconstitutional as applied to that particular defendant. There can be no bright line rule, and the decision in each case rests upon the specific facts and circumstances of that case.

Based upon the totality of the circumstances, the defendant herein has established that there is no rational relationship to a legitimate state interest in having SORA apply to him, and the People, in turn, have failed to convince the court that one exists as to this defendant.

The court, however, must reiterate that this decision is limited to the facts of this particular case. By virtue of this decision, the court has recognized a presumption of legitimacy in that provision of New York's Sex Offender Registration Act requiring those convicted of certain kidnapping offenses to register as sex offenders, which presumption may be rebutted, where, as here, a defendant can demonstrate through reliable evidence that there is no rational basis for having the statute apply to him/her, and the People then fail to establish a rational basis for having the statute apply to said defendant.

Defendant's motion is granted to the extent that, for the reasons stated herein, Defendant shall not be subject to the classification and registration requirements of New York's Sex Offender Registration Act.

The foregoing constitutes the decision and order of the court.

Dated: June 3, 2005

White Plains, NY

________________________________

RORY J. BELLANTONI

COUNTY COURT JUDGE

Footnotes

Footnote 1:Defendant is named herein as Wing Dong Moi, but has signed his affidavit and submitted his papers as Wing Dong Moy.

Footnote 2: The United States District Court Doe v. Pataki, 96 Civ. 1657 (DC), granted a redetermination hearing to certain sex offenders who were previously classified as either level two or level three sex offenders based upon the Federal District Court's finding that they had been denied due process in their initial determinations. Doe v. Pataki, 3 F. Supp. 2d 456 (S.D.NY 1998).

Footnote 3:A person is guilty of kidnapping in the second degree when he abducts another person. NY PENAL LAW §135.20.

Footnote 4:There is an automatic override to level three in Defendant's case because the offense resulted in two deaths.

Footnote 5:These offenses are: Sexual Misconduct (NY PENAL LAW §130.20); Rape in the First, Second and Third Degree (NY PENAL LAW §§ 130.25, 130.30, 130.35); Criminal Sexual Act in the First, Second and Third Degree (NY PENAL LAW §§ 130.40, 130.45, 130.50); Sex Abuse in the First, Second and Third Degree (NY PENAL LAW §§ 130.55, 130.60, 130.65); Aggravated Sex Abuse in the First, Second, Third, and Fourth Degree (NY PENAL LAW §§ 130.65-a, 130.66, 130.67, 130.70); Course of Sexual Conduct Against a Child in the First and Second Degree (NY PENAL LAW §§ 130.75, 130.80); Unlawful Surveillance in the First and Second Degree (NY PENAL LAW §§ 250.50, 250.45); Incest (NY PENAL LAW §255.25); Kidnapping Offenses (NY PENAL LAW §§ 135.05, 135.10, 135.20, 135.25); Patronizing a Prostitute in the First, Second and Third Degree (NY PENAL LAW §§ 230.04, 230.05, 235.06); Promoting Prostitution in the First and Second Degree (NY PENAL LAW §§ 230.30(2), 230.32); Disseminating Indecent Material to Minors in the First Degree (NY PENAL LAW §235.22); Persistent Sexual Abuse (NY PENAL LAW §130.53); Facilitating a Sex Offense with a Controlled Substance (NY PENAL LAW §130.90); Forcible Touching (NY PENAL LAW §130.52). NY CORRECT. LAW §168-a. Of those crimes which trigger SORA's registration requirement, the kidnapping provisions, except §135.25(2a), are the only ones that do not contain a sexual component as an element of said crimes.

Footnote 6:But see, Gunderson v. Hvass, 339 F.3d 639 (8th Cir. 2003) (analyzing due process claim under rational basis standard finding that no fundamental right was at issue in sex offender legislation), cert. denied, 540 U.S. 1124, 124 S. Ct. 1086, 157 L. Ed. 2d 922 (2004); Haddad v. Fromson, 154 F. Supp. 2d 1085 (W.D. Mich. 2001) (analyzing equal protection claim under rational basis standard finding that no fundamental right was at issue concerning sex offender legislation); Lanni v. Engler, 994 F. Supp. 849 (E.D. Mich. 1998) (analyzing equal protection claim under rational basis standard as no fundamental right implicated in sex offender registration); Doe v. Weld, 954 F. Supp. 425 (D. Mass. 1996) (analyzing equal protection claim under rational basis standard finding that sex offender registration act did not implicate fundamental right), discussed, supra .

Footnote 7:The liberty interests asserted by Defendant are that said classification allegedly results in a potential loss of employment, and inability to improve his current employment.

Footnote 8:The parole restrictions, however, are not imposed by SORA.

Footnote 9: Pursuant to the decision of the United States District Court Doe v. Pataki, 96 Civ. 1657 (DC), those sex offenders who were previously classified as either level two or level three sex offenders were given an opportunity for a redetermination hearing based upon the Federal District Court's finding that they had been denied due process in their initial determinations. Doe v. Pataki, 3 F. Supp. 2d 456 (S.D.NY 1998). The Federal Court based its decision, in part, upon a finding that, in the context of a claim for a violation of procedural due process, those sex offenders had demonstrated a liberty interest sufficient to warrant due process protections. Nonetheless, as stated, the fact that a liberty interest is at stake does not necessarily mean that a fundamental right is at issue. Immediato v. Rye Neck School District, 73 F.3d 454, 463 (2d Cir. 1996).

Footnote 10:By this Decision, the court has recognized a presumptive legitimacy in the kidnapping provision of the statute, which presumption may be rebutted by a defendant who can demonstrate that there is no rational basis for application of the statute to him. The People then, may rebut a defendant's evidence by demonstrating that SORA should nonetheless apply to a defendant.

Footnote 11:Dissemination has been stayed pending redetermination. Doe v. Pataki, 3 F. Supp. 2d 456 (1998).

Footnote 12:The term bill jacket refers to a compilation of documents relating to the proposed legislation, including but not limited to, letters and memoranda commenting on the same.