Calendar Date: February 21, 2018Before: McCarthy, J.P., Lynch, Devine, Clark and Pritzker, JJ.__________Noreen McCarthy, Keene Valley, for appellant.Kristy L. Sprague, District Attorney, Elizabethtown (JamesE. Martineau Jr. of counsel), for respondent.__________Pritzker, J.Appeal from a judgment of the County Court of Essex County(Meyer, J.), rendered September 9, 2015, convicting defendantupon his plea of guilty of the crime of failure to register orverify as a sex offender.Defendant, a convicted sex offender, was charged byindictment with the crime of failure to register or verify as asex offender under the Sex Offender Registration Act([hereinafter SORA]; see Correction Law § 168-f [4]; see alsoCorrection Law § 168-t). The charges stemmed from allegationsthat he failed to register a Facebook account.1 Thereafter,defendant moved to, among other things, dismiss the indictmentarguing that he complied with the requirements of Correction Law§§ 168-f (4) and 168-a (18) by disclosing his email address andscreen names and that he was not required to register hisFacebook account. County Court denied the motion. Thereafter,defendant pleaded guilty as charged in the indictment andexpressly reserved his right to appeal. He was sentenced, inaccordance with the plea agreement, to time served and a threeyearconditional discharge. Defendant now appeals.Based upon our statutory interpretation, we find merit indefendant’s contention that the indictment is jurisdictionallydefective, a contention that is not foreclosed by his guilty plea(see People v Boula, 106 AD3d 1371, 1371-1372 [2013], lv denied21 NY3d 1040 [2013]; People v Griswold, 95 AD3d 1454, 1454[2012], lv denied 19 NY3d 997 [2012]). “‘When presented with aquestion of statutory interpretation, our primary considerationis to ascertain and give effect to the intention of theLegislature’” (Ronkese v Tilcon N.Y., Inc., 153 AD3d 259, 262[2017], quoting Yatauro v Mangano, 17 NY3d 420, 426 [2011]).When construing statutory language, we must do so in such amanner as “‘to discern and give effect to the drafter’sintention’” (Board of Trustees of the Vil. of Groton v Pirro, 152AD3d 149, 153 [2017] [brackets omitted], quoting Matter of AlbanyLaw School v New York State Off. of Mental Retardation & Dev.Disabilities, 19 NY3d 106, 120 [2012]). We must first look tothe language of the statute, and, where that language isunambiguous, we must give effect to its plain meaning (see Pultzv Economakis, 10 NY3d 542, 547 [2008]; Matter of County of Ulster[ERED Enters., Inc.], 121 AD3d 111, 116 [2014], lv dismissed 24NY3d 988 [2014]). However, where the statutory language isambiguous, we may look to the statute’s legislative history todecipher its meaning (see People v Ballman, 15 NY3d 68, 72[2010]; Roberts v Tishman Speyer Props., L.P., 13 NY3d 270, 286[2009]).Pursuant to Correction Law § 168-f (4), a “sex offendershall register with the [Division of Criminal Justice Services]no later than [10] calendar days after any change of . . .[I]nternet accounts with [I]nternet access providers belonging tosuch offender [or] [I]nternet identifiers that such offenderuses” (emphasis added). Under the statute, “‘Internet accessprovider’ means any business, organization or other entityengaged in the business of providing a computer andcommunications facility through which a customer may obtainaccess to the [I]nternet” (Correction Law § 168-a [17]).Inasmuch as Facebook does not provide its customers with Internetaccess, it is not an Internet access provider.We must then determine whether it is an Internetidentifier. Internet identifiers are defined as “electronic mailaddresses and designations used for the purposes of chat, instantmessaging, social networking or other similar [I]nternetcommunication” (Correction Law § 168-a [18]). Although a sexoffender may establish a Facebook account by utilizing anelectronic mail address, the account itself is not an electronicmail address. Therefore, we must determine whether a Facebookaccount constitutes a “designation used for the purposes of chat,instant messaging, social networking or other similar [I]nternetcommunication” (Correction Law § 168-a [18]).Indisputably, the term “designation” has a plain andcommonly understood meaning and is defined as “a distinguishingname, sign[] or title” (Merriam-Webster Online Dictionary,designation [http://merriam-webster.com/dictionary/designation]).However, when read in its entirety, a “designation used for thepurposes of chat, instant messaging, social networking or othersimilar [I]nternet communication” is subject to varyinginterpretations, particularly given the ever-evolving nature ofsocial media (Correction Law § 168-a [18]). On the one hand,this language could arguably require an offender to register eachand every social media website or application that he or sheuses. On the other hand, the statute could be more narrowlyinterpreted to only require registration of a designation, thatbeing a distinguishing name or title.Because the statutory language is subject to differentinterpretations, we must look outside the statute to determineits meaning. The Sex Offender Registry Annual AddressVerification Form,2 which is sent to sex offenders by theDivision of Criminal Justice Services (see Correction Law §§ 168-a [5]; 168-b [4]; 168-f [2] [a]), has a section titled “InternetInformation.” Under this section, the sex offender must discloseany service providers, screen names and email addresses. Theform does not require sex offenders to register which socialnetworking websites or applications that they utilize or haveaccounts with, but instead requires the registration of any andall email addresses or screen names used in connection withsocial networking websites or applications. Here, defendant didwhat was required by the form by disclosing his email address andscreen names.Additionally, the legislative history behind the“Electronic Security and Targeting of Online Predator’s Act”(hereinafter e-Stop) — the bill that codified the currentlanguage employed in Correction Law §§ 168-a (18) and 168-f (4) –reveals that its purpose was to protect the public, especiallyminors, from the dangers posed by sexual predators using socialnetworking websites and other similar services (see L 2008, ch67, § 1; 2008 McKinney’s Session Laws of NY, at 587). TheLegislature, in enacting e-Stop, recognized that while the lawlimits the ability of law enforcement to prevent a sex offenderfrom using the Internet to contact a child (see e.g. Packingham vNorth Carolina, ___ US ___, ___, 137 S Ct 1730, 1733-1734[2017]), social networking websites may themselves be able topreclude sex offenders from “accessing such websites’ mostvulnerable users.” Prior to e-Stop, however, social networkingwebsites could not access the Internet information contained inthe sex offender registry (see L 2008, ch 67, § 1; 2008McKinney’s Session Laws of NY, at 588). E-Stop “enables New Yorkto combat misuse of the [I]nternet by convicted sex offenders byrequiring sex offenders to register their [I]nternet identifierswith law enforcement, permitting social networking websites toaccess the [I]nternet identifiers of convicted sexual predatorsin order to prescreen or remove them from services used bychildren and notify law enforcement of potential violations oflaw, and prohibiting certain high risk sex offenders from usingthe [I]nternet to victimize children” (L 2008, ch 67, § 1; 2008McKinney’s Session Laws of NY, at 588). Thus, the main purposeof e-Stop is to enable social networking sites, or authorizedInternet entities, to access these Internet identifiers in orderto better protect the users of their websites. Finally, we notethat, under the statute, Facebook meets the definition of anauthorized Internet entity, which is defined as “any business,organization or other entity providing or offering a service overthe [I]nternet which permits persons under [18] years of age toaccess, meet, congregate or communicate with other users for thepurpose of social networking” (Correction Law § 168-a [16]). Theabsence of any requirement in the statute that a sex offenderdisclose which authorized Internet entities he or she uses istelling.Upon consideration of the foregoing, we conclude that thesocial media website or application — be it Facebook or any othersocial networking website or application — does not constitute a“designation used for the purposes of chat, instant messaging,social networking or other similar [I]nternet communication”(Correction Law § 168-a [18]). An Internet identifier is not thesocial networking website or application itself; rather, it ishow someone identifies himself or herself when accessing a socialnetworking account, whether it be with an electronic mail addressor some other name or title, such as a screen name or user name.Defendant’s failure to disclose his use of Facebook is not acrime, rendering the indictment jurisdictionally defective (seePeople v Boula, 106 AD3d at 1372; People v Slingerland, 101 AD3d1265, 1266 [2012], lv denied 20 NY3d 1104 [2013]). Accordingly,we find that County Court improperly denied defendant’s motion todismiss the indictment. In light of our determination,defendant’s remaining arguments are academic.McCarthy, J.P., Lynch, Devine and Clark, JJ., concur.ORDERED that the judgment is reversed, on the law, motiongranted and indictment dismissed.ENTER:Robert D. MaybergerClerk of the Court
