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LAW OFFICES OF
GERALD B. LEFCOURT, P.C.

Ms. Lanna Belohlavek
June 5, 2006
Page 3

In New York, a person must register as a sex offender if they are required to register in the jurisdiction of conviction or, if convicted in a foreign jurisdiction, his conviction there meets “all the essential elements” of New York’s enumerated sexual offenses. See, N.Y. Corr. Law §§ 168-1(2)(a)(I), (d), (3). In spite of the statutory reference to “essential elements,” some New York courts have looked at the facts underlying the offense of conviction, rather than the formal elements of the offense, in determining whether registration is required. Each finding that a defendant was required to register on the basis of the underlying conduct even though the essential elements test was not satisfied. See, People v. Burden, 6 Misc.3d 1033(a)(Sup. Ct. Bronx Cty. 2005); People v. Millan, 189 Misc.2d 419, 730 N.Y.S.2d 392 (Sup. Ct. N.Y. Cty. 2001).

The same serious concern arises in other states, including California and Colorado, which authorize courts to look behind the plea, and beyond the formal elements of the offense of conviction, and enable them on a case by case basis to determine if registration is required.

Like New York, California requires an individual to register if they are required to register in the state of conviction, or pursuant to CA Penal Code § 290(a)(2)(D)(I) if that individual “... since July 1, 1944, has been, or is hereafter convicted in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, would have been punishable as one or more of the offenses described in subparagraph (A)”. The wording of the statute leaves open the possibility that, in determining whether the offense would have been punishable as one or more of the registrable offenses, one looks at the underlying facts, and not at the formal elements of the crime to which the defendant pled. The registrable California offenses include commission of “any lewd or lascivious act ... upon or with the body of child” where the child is “14 or 15 years” of age and “that person is at least 10 years older than the child” “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child”. CA Penal Code § 288(a), (c) (1). Thus, an aggravated assault plea may subject the client to a registration requirement in the State of California.

Colorado likewise has a very broad statute. It requires an individual to register within five business days of becoming a temporary or permanent resident of the state, if, among other things, the person has been convicted in Colorado or any other state of an offense involving sexual behavior (or an attempt, solicitation or conspiracy to commit such an offense), or if they are required to register in another state or jurisdiction for a sex offense. C.R.S.A. §§ 16-22-103, 16-22-108.

With regard to Florida, as you know, it is reasonably clear that under Florida’s current version of Megan’s Law, a plea to aggravated assault would not subject the client to registration in Florida since it is not included among the state’s enumerated “sexual offender” offenses. See

07/26/17
16998195 'ON XVd Page 11 of 131
Public Records Request No. 2006-91-NJC
DOJ-OGR-00030478