New York Man Previously Convicted as Sex Offender Subject to Amended Statute’s Stricter Requirements

The U.S. Court of Appeals for the Second Circuit has held that a state sex offender statute’s amendments applied to a New York man despite his conviction on a plea preceding the amendments.

John Doe, a sex offender required to register under the New York State Sex Offender Registration Act (“SORA”), petitioned after approximately ten years to be relieved from SORA’s requirements. Under recent amendments, however, this was no longer permitted and Doe was denied. Doe filed suit against Andrew Cuomo – the Governor of New York – and M. Sean Byrne – Acting Commissioner of New York’s Division of Criminal Justice Services – in the U.S. District Court for the Eastern District of New York. Doe argued such claims as ex post facto, Fourth Amendment, due process and equal protection violations. After the defendants’ motion for summary judgment had been granted, Doe appealed. On June 16, 2014, the appellate court affirmed the district court’s judgment.

After being arrested in 1999 for possession of child pornography, Doe pled guilty to a misdemeanor in Queens County Criminal Court. He was sentenced to three years’ probation and as being designated a level one sex offender, he was required to register annually under SORA. According to the sentencing court, Doe could petition to be released from SORA’s requirements at a future time. In 2006, the statute was amended to extend the registration period for level one offenders from ten years to twenty years; to eliminate the opportunity for offenders to be released from the requirements of SORA; to allow offenders to petition a sentencing court for modification of their notification level; and to extend notification provisions to the public, police and vulnerable populations.

In 2009, Doe petitioned the county court to be relieved of the requirements of SORA by being downgraded below level one. The county court denied the petition, stating that level-one offenders cannot be downgraded. Doe subsequently filed suit in the district court, challenging the constitutionality of the amendments being applied to him. Finding Doe’s suit meritless, the district court granted the defendants’ motion for summary judgment and Doe appealed.

Doe argued on appeal that (1) SORA’s notification and registration amendments were punitive, violating the ex post facto clause, (2) he had been deprived of procedural and substantive due process, (3) his plea agreement had been violated by denying him the opportunity to petition for relief, and (4) his Fourth Amendment and equal protection rights had been violated.

The appellate court stated that ex post facto is prohibited where it applies to penal statutes, not to regulatory statutes that are nonpunitive in effect. In a previous challenge to SORA’s 1997 version, the same court had held that SORA was a nonpunitive regulatory statute and did not violate the ex post facto clause. See: Doe v. Pataki, 120 F.3d 1263 (2d Cir. N.Y. 1997).

Likewise, the appellate court presently held that extending notification, “which permit[s] free public telephonic access to the registry and authorize[s] law enforcement officers to disseminate information regarding level-one sex offenders to entities with vulnerable populations,” and extending the registration requirements were not punitive. As in Doe v. Pataki, access and dissemination of information were limited and protected. Also according to the court, the registration amendments “reflect[ ] a reasonable legislative judgment…that the regulatory aims of protecting public safety and facilitating law enforcement are better served by ensuring that all level-one offenders remain registered for twenty [years].”

Doe next argued that he had been denied procedural due process by neither having the opportunity to present whether he was dangerous enough to warrant SORA being applied to him nor to petition to be relieved from SORA’s requirements. The appellate court disagreed, determining that “whether Doe [was] actually dangerous [was] irrelevant under SORA” and that the New York Legislature had the constitutional right to abolish an offender’s option to petition for relief. The court additionally concluded that Doe’s substantive due process allegations of SORA interfering with his rights to travel and to privacy – such as divulging protected personal information and precluding certain health benefits – were meritless. Doe had not demonstrated any injury from SORA’s provisions, the appellate court found.

The appellate court further held that no plea breach existed despite Doe’s claim that the county court has promised him an opportunity to petition for relief. The appellate court did not “construe the state court’s comment…as a representation that SORA would never be amended.”

Doe’s allegation of an equal protection violation due to the twenty-year annual registration requirement amended in the interests of protecting the public was also rejected by the appellate court as “the amendments withstand rational basis review.” Finally, as to Doe’s Fourth Amendment claim, the court reasoned that “searches or seizures required by SORA serve special needs – such as the protection of potential future victims and…[are] reasonable in relation to the interests advanced by SORA” and do not violate the Fourth Amendment’s protection against unreasonable searches or seizures. See: Doe v. Cuomo, 755 F.3d 105 (2d Cir. N.Y. 2014).

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