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BECAUSE OF UNAMBIGUOUS STATUTORY LANGUAGE, DEFENDANT’S MICHIGAN CONVICTION WAS DEEMED A “SEXUALLY VIOLENT OFFENSE” EVEN THOUGH THE SAME CONDUCT IN NEW YORK WOULD NOT QUALIFY AS A “SEXUALLY VIOLENT OFFENSE;” STRONG TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the result, while admittedly unfair, is required by unambiguous statutory language. For predicate felony purposes, a Michigan conviction was deemed a “sexually violent offense,” even though the same conduct would not constitute a “sexually violent offense” if committed in New York:

A ” ‘[s]exually violent offender’ means a sex offender who has been convicted of a sexually violent offense” (Correction Law § 168-a [7] [b]). A ” ‘[s]exually violent offense,’ ” among other things, is “a conviction of an offense in any other jurisdiction which includes all of the essential elements of any [New York] felony [enumerated in section 168-a (3) (a)] or conviction of a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred” (§ 168-a [3] [b] [emphasis added]). It is undisputed that defendant was convicted of a felony in Michigan “for which [he] is required to register as a sex offender in [that] jurisdiction” (id.). Defendant’s Michigan conviction thus constitutes a ” ‘[s]exually violent offense’ ” as defined by the second of the two disjunctive clauses that comprise section 168-a (3) (b). It follows that defendant was properly designated a sexually violent offender, even though he would not qualify as such had he committed the same conduct in New York … . People v Talluto, 2022 NY Slip Op 00575, Fourth Dept 1-28-22

 

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