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DEFENDANT SHOULD NOT HAVE BEEN DESIGNATED A PREDICATE SEX OFFENDER BASED UPON A MICHIGAN CONVICTION OF “BREAKING AND ENTERING AN OCCUPIED DWELLING WITH THE INTENT TO COMMIT CRIMINAL SEXUAL CONDUCT IN THE SECOND DEGREE” (SECOND DEPT).

The Second Department determined defendant should not have been classified as a predicate sex offender based upon a Michigan conviction of breaking and entering an occupied dwelling with the intent to commit criminal sexual conduct in the second degree:

Supreme Court should not have, in effect, designated the defendant a predicate sex offender based upon his 1983 Michigan conviction. Where the prior conviction was in a jurisdiction other than New York State, the offense in the other jurisdiction must include all of the essential elements of a crime enumerated as a “sex offense” or “sexually violent offense” in the Correction Law or must require registration as a sex offender in the jurisdiction in which the conviction occurred  … . Although the crime of breaking and entering an occupied dwelling with the intent to commit criminal sexual conduct in the second degree in Michigan is equivalent to the offense of burglary in the second degree in New York … , burglary is not classified by the Correction Law as a “sex offense” or a “sexually violent offense” … , and the People did not rely on the 1983 Michigan conviction as constituting a sexually motivated felony. Moreover, the crime of which the defendant was convicted in 1983 is not considered a sex offense requiring registration as a sex offender in Michigan … . Accordingly, the designation of the defendant as a predicate sex offender was improper … . People v Smith, 2019 NY Slip Op 06181, Second Dept 8-21-19

 

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