People v Muller

[*1] People v Muller 2004 NY Slip Op 50667(U) Decided on July 1, 2004 District Court Of Nassau County, First District 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 1, 2004
District Court of Nassau County, First District

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff(s)

against

RICHARD MULLER, Defendant(s)



012773/02



Kent V. Moston, Esq., Legal Aid Society of Nassau County, for defendant. Denis Dillon, District Attorney, for plaintiff.

Scott Fairgrieve, J.

The defendant, Richard Muller, was charged with violating N.Y. Correction Law section 168-f(3) (duty to register and to verify) pursuant to his classification as a class three sex offender. Defendant moves to dismiss people's charges pursuant to N.Y. Criminal Procedure Law sections 170.30(5) and 170.40 in the interest of justice.

Under NY Correction Law section 168-f(3), a sex offender, sexual predator, or a person "having been given a level three designation must personally verify his or her address with the local law enforcement agency every ninety calendar days after the date of release. . . ." This law was promulgated by the legislature as part of the New York's Sex Offender Registration Act ("SORA,") or Megan's law; it is a regulatory law designed to foster and enhance public safety.

In the instant case, the question presented is whether an individual who was designated as a class three sex offender and provided notice of his duty to register and verify his address but allegedly forgot and registered 14 days past the ninety-day requirement can nonetheless have his case dismissed in the interest of justice.

On June 24, 1996 the Board of Examiners recommended that the defendant should be classified as a class three sex offender due to the defendant' s prior felony conviction of manslaughter in the First Degree for the burglary and "attacking to death a 79-year old landlord" [*2]and the sexual assault committed against a minor, which occurred six months after his release from prison. Based upon the Board's recommendation, the Court declared the defendant a class three sex offender on August 21, 1996. From August 21, 1996 until the present time, the defendant has been required to appear before the Nassau County Police Department every 90 days to register as a class three sex offender. Defense counsel alleges that from May 13, 1996 until June 13, 2002 the defendant had no contact with the criminal justice system. The defendant acknowledged that he was provided written notice of his May 22, 2002 appointment with the Nassau County Police Department, however, he failed to appear. On June 6, 2002 the defendant reported to the Nassau County Police Department that he did not appear at his May 22, 2002 appointment because he "forgot." On June 13, 2002, a warrant was issued for the defendant's arrest for violating Correction Law 168-f(3). On June 13, 2002, the defendant signed a statement attesting to the fact that he knew he was required to verify his address but forgot to appear on May 22, 2002.

To determine whether in the interest of justice a dismissal should be granted, the NY CPL Section 170.40(1) enumerates criteria where the "existence of some compelling factor . . . clearly demonstrating that . . . prosecution of the defendant upon such accusatory instrument . . . would constitute or result in injustice . . . the court must, to the extent applicable, examine and consider, individually and collectively, the following" factors:

(a)the seriousness and circumstances of the offense;

(b) the extent of harm caused by the offense;

(c) the evidence of guilt, whether admissible or inadmissible at trial;

(d) the history, character and condition of the defendant;

(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;

(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

(g) the impact of a dismissal on the safety or welfare of the community;

(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;

(I) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;

(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

The Court of Appeals held in People v. Belge, 41 N.Y.2d 60, 62-63 (1976) that the trial court has limited discretion to dismiss a case in the interest of justice, and should only apply CPL 170.40 where the facts alleged "cr[y] out for fundamental justice beyond the confines of conventional considerations." In light of this consideration, the Court will address each factor individually and collectively to balance the interests of the defendant with those of the community. (See People v. Rickert, 58 N.Y.2d 122, 1227 (1983)).

[*3]A. The seriousness and circumstances of the offense:

1. Defense counsel claims that during the 14 days where the defendant was late in verifying his address, that the police were not looking for the defendant, that the defendant was arrested only after he voluntarily came forward and registered/verified his address, and that the defendant has been cooperating fully with all law enforcement personnel. The people did not make a reply concerning this point.

2. The defense asserts that Mr. Muller has been residing at the same address for the past six years. The people did not make a reply concerning this point.

3. The defense contends that although Mr. Muller has been charged with violating N.Y. Correction Law section 168-f(3), he has been "on liberty" during the two years pending trial for this violation. Moreover, the defendant has allegedly not violated the terms of his parole for any other offense, nor has he been incarcerated during this time.

While the people do not answer this point here, they assert in section C that the whereabouts and behavior of the defendant at any time other than the time between May 22, 2002 and June 6, 2002 is not before the court at this time.

While neither side can with one hundred percent certainty make any representation as to the defendant's behavior or whereabouts during the time in question, it is notable that the defendant came of his own volition to verify his address. But this point alone does not shock the conscious of the court.

4. The defense alleges that Mr. Muller's Risk Level was adjudicated untimely. The statute went into effect on January 22, 1996. The time frame set forth in the Act establishes that the board should recommend a risk level within 60 days before the defendant's release from prison. The board conceded that the defendant was released from prison on May 13, 1996 but the defendant was not provided with a risk level assessment until June 24, 1996.

The people reply that the plain language of the N.Y. Correction Law section 168-l(8) which reads as follows: "[a] failure by a state or local agency or the board to act or by a court to render a determination within the time period specified in this article shall not affect the obligation of the sex offender to register or verify under this article nor shall such failure prevent a court from making a determination regarding the sex offender's level of notification and whether such offering is required by law to be registered for a period of ten years or for life" (emphasis added) establishes that despite the delay in providing a risk level, the convicted sex offender is still required to register and verify his address.

The plain language of the statute clearly states that even if the Court, state, or board has yet to render a determination, the sex offender is nevertheless required to register and verify his address upon his or her release from jail. In the case at bar, the Court adopted the board's [*4]recommendation to classify the defendant as a class three sex offender on August 21, 1996. Thus, the defendant has been on notice of his duty to register since 1996, that is almost six years before the defendant missed his May 22, 2002 verification date.

B. The extent of harm caused by the offense:

Although the defense counsel alleges that no one was injured in the case at bar, the people contend that the Court should evaluate the claim for dismissal on the potential impact that dismissal could have on the safety of the public at large and society's confidence in the criminal justice system.

In Doe v. Pataki, 120 F.3d 1263, 1276-79 (2d Cir. 1997), the court looked to the legislative intent when it adopted SORA and found that "[t]he legislative history of the Act supports the preamble's characterization of the twin purposes served by the SORA protecting communities by notifying them of the presence of individuals who may present a danger and enhancing law enforcement authorities' ability to fight sex crimes."

Here, although the defendant did not actively injure anyone or anything, his passivity, that is his failure to register, thwarted the twin aims of SORA. This court appreciates the fact that the defendant had timely registered on every other occasion, and voluntarily came forward, albeit late, to register; however, the defendant has failed to raise any argument denial of which would shock the conscious of the Court that would call for a dismissal in the interest of justice.

C. The evidence of guilt, whether admissible or inadmissible at trial:

As stated above in part A (3), the defense alleges that the defendant did not commit any crimes between May 22, 2003 and June 6, 2003; however, as the people correctly point out that issue is not before the Court at this time. Moreover, neither side can with one hundred percent certainty make any representation as to the defendant's behavior or whereabouts during the time in question.

The only determination this Court can make based upon the papers is that the defendant admitted on June 13, 2002 his knowledge that he was required to report to verify his address with the police, but did not do so.

D. The history, character and condition of the defendant:

Defense counsel asserts that the defendant is 66-years-old and for the past six years he has resided at the same address in Valley Stream, New York. The defense also claims that prior to his arrest for failing to verify his address in a timely manner, the defendant had no contact with the criminal justice system since he was paroled on May 13, 1996. However, prior to this incident, the defendant served 12 years in prison for manslaughter in the First Degree for the burglary and "attacking to death a 79-year-old landlord." Only six months after his release from jail, the [*5]defendant sexually assaulted a minor and threatened to kill other minor-children witnesses if they told anyone about what they had observed.

While the court recognizes that the defendant has not had any contact with the judicial system since he was last incarcerated, congratulates the defendant on his good behavior, and appreciates the fact that the defendant is 66 years old; nevertheless, the defense has not stated any reason that would shock the conscience of the court if it permitted dismissal of the charges.

E. Any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant:

The defense did not make an individual complaint about this issue in their motion for dismissal in the interest of justice.

F. The purpose and effect of imposing upon the defendant a sentence authorized for the offense:

The defense claims that incarcerating a 66-year-old man for violating the registration and verification of address requirements would be more detrimental to the defendant than beneficial to the community; however, the defense does not state why it would be more detrimental to the defendant than beneficial to the community. The defendant receives public assistance including, disability benefits, social security income, and medicaid. The defendant is unemployed; additionally, defense counsel did not file any supporting documentation asserting that his incarceration would be detrimental to his family or from any other individuals in support of his claim for dismissal in the interest of justice. (E.g., volunteer work supervisor, a religious leader). The people allege that "New York law traditionally recognizes that once a person enters the criminal justice system, it is appropriate to place special responsibilities upon that person and to impose strict liability for any violation of those responsibilities."

In People v. Olwes, 191 Misc. 2d 275, 279 (N.Y. Crim. Ct., 2002) where the court held that "[i]t is clear that the state legislature intended all crimes to be construed as containing a mental culpability element to the offense unless the statute contains a clear legislative intent to impose strict liability. . . . Typically, strict liability is applied for acts considered malum prohibitum, acts which are prohibited because of their apparent evil, or stated otherwise, acts which by their nature are so disturbing to the public's sensibility that their mere commission, regardless of the underlying intent, if any, makes the actor criminally responsible."

If a sex offender fails to register or verify in a timely fashion, then according to NY Correc. § 168-t, which states in pertinent part: Any sex offender required to register or to verify pursuant to the provisions of this article who fails to register or verify in the manner and within the time periods provided for herein shall be guilty of a class A misdemeanor upon conviction for the first offense. . . . Any such failure to register or verify may also be the basis for revocation of parole pursuant to section two hundred fifty-nine-I of the executive law or the basis for [*6]revocation of probation pursuant to article four hundred ten of the criminal procedure law.

In People v. Patterson, 185 Misc. 2d 519, 526 (N.Y. Misc., 2000) "[t]he 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."

So too in the case at bar, defendant's failure to verify his address is a strict liability crime.

G.The impact of a dismissal on the safety or welfare of the community:

The defense alleges that no person or property was injured by his failure to register and that the defendant had verified his address but was only arrested some seven days later. However, the defendant admitted that he knew that he was required to register and failed to do so. Moreover, as stated in part F, the Court concurs with Patterson in holding that failure to register or verify one's address after being declared a class three sex offender is a strict liability crime. In the case at bar, the defendant has not provided the Court with any exigent circumstances warranting a deviation from the above.

H. The impact of a dismissal upon the confidence of the public in the criminal justice system:

The defense concedes that the public retains an interest in the registration of class three sex offenders; however, it urges the Court to depart from earlier jurisprudence and claims that "it should not follow that all incidents [i.e., failing to verify one's address] should be prosecuted with equal vigor [and that] a dismissal here would not undermine the confidence of the public in the criminal justice system. . . ." The people submit that "all occurrence[s] of failure-to-register crimes require mandatory and uniform prosecution."

The Court recognizes the need to look at each and every case individually, and refuses to place a blanket over all failure-to-register cases by deeming them all automatic violations. Moreover, there may yet one day be a reason to grant a motion to dismiss in the interest of justice; however, in this instance, the defense has not provided such a reason.

I. Where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion:

The defendant did not discuss this issue in his motion for dismissal in the interest of justice. [*7]

J. Any other relevant fact indicating that a judgment of conviction would serve no useful purpose:

As Judge Kiesel, said in People v. Watson, 700 N.Y.S.2d 651, 653 (N.Y. Crim. Ct., 1999), "[a]fter full consideration of all of the arguments offered by the defendant in his moving papers . . . and the relevant criteria, the court does not find any compelling factor, consideration or circumstance that clearly demonstrates that conviction or prosecution of the defendant would result in an injustice. It would, therefore, be an inappropriate exercise of the court's discretion to dismiss the accusatory instrument in the furtherance of justice."

However, our inquiry does not end here, in People v. Stern, 83 Misc. 2d 935, 936 (N.Y. Crim. Ct., 1975) the court held that "CPL 170.40 does not use the word "persuasive. [Rather, t]he section calls for a dismissal in the interests of justice where a 'compelling' factor, consideration or circumstance requires it, and there is a vast difference between the strength and weight of the two. It is the opinion of this court that the Legislature used the word 'compelling' as a means to put the judiciary on notice to use this section . . . sparingly . . . . The word implies that the facts and circumstances must be of a nature that denial of the relief would be such an abuse of discretion as to shock the conscience of the court. That level has not been reached in this case. Before the function of the jury, the Judge and the very trial itself is supplanted, an overriding moral issue must be present so as to utilize this extraordinary procedure requested herein."

As discussed above, no exigent circumstances presented by the defense create an overriding moral issue that would necessitate the Court to grant a dismissal in the interest of justice.

Therefore, the defendant's motion to dismiss is denied.

So Ordered:

DISTRICT COURT JUDGE

Dated:July 6, 2004

Kent V. Moston, Esq., Legal Aid Society of Nassau County, for defendant. Denis Dillon, District Attorney, for plaintiff.