Conviction In a Military Tribunal of “Assault with Intent to Commit Rape” Was Not a “Sex Offense” Under New York Law—However, the Conviction Could Be Considered Under the “Prior Criminal History” Risk Assessment Category

The Second Department determined that conviction of “assault with intent to commit rape” in a military tribunal should not have been as a “prior sex crime” to determine defendant’s risk level.  The offense did not qualify as a “sex offense” under New York law and did not include all the elements of any New York sex offense.  The conviction, however, could be considered as “a prior criminal history” in the risk assessment:

…[T]he military offense of which the defendant was convicted did not qualify as a “sex offense,” as defined in Correction Law § 168-a(2)(d)(ii) … . Furthermore, contrary to the People’s contention, the defendant’s military offense does not “include[ ] all of the essential elements” (Correction Law § 168-a[2][d][i]) of attempted rape in the first degree under New York law, and thus does not qualify as a “sex offense” on that basis.

Although the defendant’s prior military offense of assault with intent to commit rape [*2]does not qualify as a sex offense, it does evidence a prior criminal history, People v Lancaster, 2015 NY Slip Op 04106, 2nd Dept 5-13-15