| People v Haddock |
| 2008 NY Slip Op 01653 [48 AD3d 969] |
| February 28, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JohnHaddock, Jr., Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered November 30, 2004, upon a verdict convicting defendant of two counts of the crime offailure to register under the Sex Offender Registration Act.
Defendant was arrested in 1989 and convicted in 1991 of attempted rape in the first degree.He was sentenced to a prison term of 6 to 12 years, which he completed, and he was released in2001. Because of the nature of his crime, he was required to register under the Sexual OffenderRegistration Act (see Correction Law art 6-C [hereinafter SORA]). In August 2002, adetective in the City of Albany Police Department located defendant and obtained his currentaddress and his signature on a SORA registration form. Thereafter, defendant failed to complywith the registration requirements resulting in misdemeanor convictions in March 2003 andAugust 2003 for failing to register (see Correction Law § 168-t).[FN*] He allegedly again did not [*2]comply with the SORAregistration mandates resulting in an indictment charging him with two felony counts of failing toregister (see Correction Law § 168-f [2], [4]; see also Correction Law§ 168-t). He was convicted of both counts following a jury trial and sentenced toconcurrent prison terms of 1 to 3 years. Defendant appeals.
We consider first defendant's argument that County Court erred in refusing his request thatthe jury charge include, among other things, an instruction that the People were required to provethat he knowingly failed to comply with SORA's registration requirements. While CorrectionLaw § 168-t contains no requirement of a culpable mental state, such omission is not theend of the analysis. The Legislature has instructed that "[a]lthough no culpable mental state isexpressly designated in a statute defining an offense, a culpable mental state may nevertheless berequired for the commission of such offense" (Penal Law § 15.15 [2]). It is well recognizedthat "[i]n the absence of a clear legislative intent to impose strict criminal liability, suchconstruction should not be adopted" (People v Coe, 71 NY2d 852, 855 [1988];see Penal Law § 15.15 [2]). Strict liability statutes are not favored (see Staplesv United States, 511 US 600, 605-606 [1994]; People v Campbell, 72 NY2d 602,608 [1988] [Bellacosa, J., dissenting]; 1 LaFave, Substantive Criminal Law § 5.5 [2d ed];Model Penal Code § 2.05). In determining whether the Legislature has expressed a clearintent to create a crime without fault, relevant considerations include the provisions of theenactment viewed as a whole and the legislative history (see People v Nogueros, 42NY2d 956, 956-957 [1977]), as well as factors such as the severity of the penalty and the publicharm being protected against (see Morissette v United States, 342 US 246, 255-257[1952]; 1 LaFave, Substantive Criminal Law § 5.5 [2d ed]).
In light of the nature of the penalty and the absence of any specific language in the statute orits legislative history clearly expressing an intent to create a strict liability crime, we areunpersuaded that a crime with no scienter was intended (see generally Morissette v UnitedStates, 342 US at 250-263; People v Lopez, 140 P3d 106, 111-113 [Colo 2005][construing that state's sexual offender registration act to require a culpable mental state despitethe absence of one in the statute]; cf. State v White, 162 NC App 183, 189, 590 SE2d448, 452 [2004] [specific legislative intent supported determination that no mens rea requirementnecessary]; compare People v Patterson, 185 Misc 2d 519 [2000], with People vManson, 173 Misc 2d 806 [1997]). The notice provisions laced throughout the statute(see Correction Law § 168-b [4]; § 168-d [1]; § 168-e [1]) evince anintent that a violator should not be subjected to a strict liability standard. In fact, the prescribednotice provisions make the "use of the term 'strict liability' . . . a misnomer" as tothis offense (Staples v United States, 511 US at 608 n 3; see Liparota v UnitedStates, 471 US 419, 443 n 7 [1985] [White, J., dissenting]; 1 LaFave, Substantive CriminalLaw § 5.5 n 1 [2d ed]). Recognizing the significance of the notice requirements, as well asdue process issues implicated, the Criminal Jury Instructions set forth knowledge as an elementof this crime (see CJI2d[NY] Correction Law § 168-t; see also Lambert vCalifornia, 355 US 225 [1957]). Establishing knowledge is not an onerous task for thePeople under SORA since it can be proven by circumstantial evidence (see Commonwealth vRamirez, 69 Mass App Ct 9, 13 n 6, 865 NE2d 1158, 1162 n 6 [2007]; cf. People vLewis, 125 AD2d 918, 919 [1986], lv denied 69 NY2d 882 [1987]), including beinginferred from the notice given an offender under the statute (see People v Garcia, 25 Cal4th 744, 752, 23 P3d 590, 594 [2001]).
Here, County Court charged only two elements as to each felony. As to count one, the courtcharged that the People had to prove that defendant was required to annually register and that hefailed to register. As to count two, the charge required findings that defendant was required toregister and that he failed to do so within 10 days of a change of address. Defendant objected[*3]both before and after the charge and requested, among otherthings, that the charge include a knowledge requirement. While the People's proof includedample evidence of defendant's knowledge, the failure to provide a charge as to such elementcannot be regarded as harmless error (see People v Rowland, 14 AD3d 886, 887 [2005]).
Finally, we note that the indictment was not, as asserted by defendant, jurisdictionallydefective (see People v Welch, 46AD3d 1228, 1229 [2007]; see also People v D'Angelo, 98 NY2d 733, 735 [2002]).The remaining arguments are academic.
Mercure, J.P., Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Albany County for furtherproceedings not inconsistent with this Court's decision.
Footnote *: Correction Law § 168-thas since been amended to provide that a first offense for failing to register is a class E felonyand any subsequent offense is a class D felony (see L 2007, ch 373, § 1).