DECISION and ORDER The issue presented in Respondent’s motion to dismiss the instant Sexual Offender Registration Act (hereinafter “SORA”) Proceeding is whether Respondent’s guilty plea and conviction for violating 18 U.S.C. §1466A(a)(1)(A) is a registrable sex offense in New York pursuant to Correction Law §168-a(2)(d)(i). This court holds that Respondent’s guilty plea and conviction for violating 18 U.S.C. §1466A(a)(1)(A) is a registrable sex offense under SORA based upon the New York State Board of Examiners of Sex Offenders’ (hereinafter the “Board”) finding that 18 U.S.C. §1466A(a)(1)(A) includes all of the essential elements of a sex offense pursuant to Correction Law §168-a(2)(d), specifically: Promoting a Sexual Performance by a Child, in violation of P.L. §263.15. In addition, after conducting an equivalency test, based on a comparison of the essential elements of 18 U.S.C. §1466A(a)(1)(A) this court holds that said federal statute is, in fact, within the scope of P.L. §263.15. On May 8, 2019, Respondent plead guilty to and was convicted of violating 18 U.S.C. §1466A(a)(1)(A) and was sentenced to 72 months in the Federal Bureau of Prisons (hereinafter “BOP”) to be followed by three years of supervised release. 18 U.S.C. §1466A is entitled: “Production and Distribution of Obscene Visual Representations of the Sexual Abuse of Children.” The specific subsection that Respondent plead guilty to and was convicted of. 18 U.S.C. §1466A(a)(1)(A). provides that a person is guilty of violating the same when: “…in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that depicts a minor engaging in sexually explicit conduct and is obscene.” The Board upon being notified that Respondent’s release from BOP to Bronx County was imminent, prepared a Risk Assessment Instrument (hereinafter “RAI’). The Board in its RAI found that 18 U.S.C. §1466A(a)(1)(A) includes all the essential elements of a sex offense pursuant to Correction Law §168-a(2)(d). specifically: Promoting a Sexual Performance by a Child, in violation of P.L. §263.15. P.L. §263.15 provides that: “A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than seventeen years of age.”1 The “essential elements” provision in SORA requires registration whenever an individual is convicted of criminal conduct in a foreign jurisdiction that, if committed in New York, would have amounted to a registrable New York offense. Matter of North v. Board of Examiners of Sex Offenders of State of N.Y., 8 N.Y.3d 745, 871 N.E.2d 1133. 840 N.Y.S.2d 307. This necessarily requires that the Board compare the elements of the foreign offense with the analogous New York offense to identify points of overlap. Id. When the Board finds that the two offenses cover the same conduct, the analysis need proceed no further, for it will be evident that the foreign conviction is the equivalent of the registrable New York offense for SORA purposes. Id. In circumstances where the offenses overlap but the foreign offense also criminalizes conduct not covered under the New York offense, the Board must review the conduct underlying the foreign conviction to determine if that conduct is, in fact, within the scope of the New York offense. Id. If it is, the foreign conviction is a registrable offense in New York under SORA’s essential elements test. Id. This court rejects Respondent’s contention that because he sent to the minor complainant “morphed”/altered images depicting bodies of adults engaging in various sexual acts, which superimposed the face of the minor complainant and of Respondent onto those images, that “said criminal conduct is not covered by P.L. §263.15.” As an initial matter, in accord with the essential elements analysis articulated in North, based upon the Board’s finding that the two offenses cover the same conduct, the analysis need proceed no further, as it is evident that Respondent’s guilty plea and conviction of 18 U.S.C. §1466A(a)(1)(A) is the equivalent of a registrable New York offense namely, the violation of P.L §263.15. Furthermore, notwithstanding the Board’s finding, this court also finds that upon comparing the elements of 18 U.S.C. §1466A(a)(1)(A) with the analogous New York offense, P.L §263.15, there is significant overlap between the two statutes to render 18 U.S.C. §1466A(a)(1)(A) a registrable sexual offense in New York pursuant to Correction Law §168-a(2)(d)(i) for SORA purposes. It appears that the New York State Legislature has not enacted explicit legislation akin to 18 U.S.C. §2256(8)(B), which expanded the definition of the Production and Distribution of Obscene Visual Representations of the Sexual Abuse of Children to include: “such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.” However, this is of no moment. The Court of Appeals has expressly rejected the exact argument that Respondent now posits, which is essentially requesting this court to use the strict equivalency standard. Consequently, this court is constrained from adopting Respondent’s strict equivalency standard and this court is compelled to utilize the more flexible approach under North that allows for consideration of the underlying conduct of a foreign conviction in addition to comparing the essential elements of the foreign and New York offenses. Therefore, considering the public policy underpinning P.L §263.15 and New York State’s interest in protecting children from the abuse caused by child pornography and due to the detrimental effects caused on children by the same provides a sufficient basis to conclude that the acts Respondent engaged in when he pled guilty to and was convicted of 18 U.S.C. §1466A(a)(1)(A) is also within the scope of prohibited conduct in New York under P.L §263.15. See People v. Perez, 35 N.Y.3d 85, 149 N.E.3d 1, 125 N.Y.S.3d 308 (2020); see also People v. Foley, 94 N.Y.2d 668, 731 N.E.2d 123, 709 N.Y.S.2d 467 (2000); see also New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982). Thus, Respondent cannot evade his statutory obligation to register as a sex offender in New York under SORA because he has availed himself of technology or methods not yet envisioned by the New York State Legislature, when he “morphed”/altered images that depicted Respondent and the minor complainant engaging in various sexual acts, and holding otherwise would undermine the main purpose underlying SORA, which is guided by the public policy of protecting the public from sex offenders. See People v. Mingo. 12 N.Y.3d 563, 910 N.E.2d 983, 883 N.Y.S.2d 154 (2009). Accordingly, it is ORDERED, that Respondent’s motion to dismiss the instant SORA Proceeding is denied. This constitutes the decision and order of the court. Dated: March 8, 2023
