Eye on Eagle

Issue Presented: Whether requiring Mr. Brown to register as a “sex offender” for an unlawful
imprisonment offense devoid of any sexual component violates his right to due process?

Held: Yes, it does.

Discussion: In an opinion authored by Judge Rivera, joined by Chief Judge Wilson in full and Judges
Troutman and Halligan in the result based on sections I, II, and V of Judge Rivera’s opinion, the
Court of Appeals reversed the Second Department’s determination that requiring Mr. Brown to
register as a “sex offender” did not violate his right to due process. Judges Cannataro, Garcia,
and Singas would affirm and dissent in an opinion authored by Judge Cannataro.

As written, the Sex Offender Registration Act (“SORA”) requires registration where a
person is convicted of kidnapping or unlawful imprisonment, the complainant is a minor, and the
potential registrant is not the complainant’s parent. This is so even if the offense at issue was not
sexually motivated and did not involve any sexual conduct at all. In 2009, in People v. Knox, 12
N.Y.3d 60 (2009), three registrants challenged the constitutionality of this requirement, but the
Court of Appeals ruled against them, holding that “the State did not violate defendants’
constitutional rights by compelling them to register as ‘sex offenders,’ even though there was no
proof that their crimes involved any sexual act or sexual motive.” Id. at 64.

In 2021, prior to his release from prison for first-degree robbery, first-degree unlawful
imprisonment, and other charges, Mr. Brown appeared before a SORA court for a risk-level
determination proceeding. Concluding it was bound by Knox, the court held that Mr. Brown was
required to register as a “sex offender” because his conviction for unlawful imprisonment
concerned a minor, Mr. Brown’s 11-year-old cousin who was present in the home when Mr.
Brown was alleged to have robbed his aunt at gunpoint. Despite ruling that Mr. Brown was
required to register, the SORA court expressly found that, as the prosecution had conceded, the
underlying offense had no sexual component as it involved “no sexual contact or motivation,”
and Mr. Brown was not a “sex offender” and posed “no risk of sexual threat at all.” Mr. Brown
appealed and the Second Department, again relying on Knox, affirmed.

In its decision reversing the Second Department, the majority does not overrule Knox,
though Judge Rivera and Chief Judge Wilson would have done so, for reasons explained in
sections III and IV of Judge Rivera’s opinion. Rather, the majority approaches the case as an “as
applied” constitutional challenge, holding that “the sex offender designation and SORA's
mandatory registration as applied to [Mr. Brown] is not rationally related to SORA's purpose of
protecting the public from sex offenders and thus violates his due process rights.” In reaching
this holding, the Court relies heavily on the favorable factual findings by the SORA court below,
none of which were present in Knox and its companion cases. These include factual distinctions
regarding the underlying offense (its lack of any sexual component and the minor not being the
target of the offense, abused in any way, or detained for a particularly long time) and Mr. Brown
(that he “posed not risk of sexual threat at all”).

The dissent strongly disagrees with the majority’s conclusion that it can find in Mr.
Brown’s favor without overruling Knox. In his opinion, joined by Judges Garcia and Singas,
Judge Cannataro assails what he describes as the majority’s “post hoc justification for setting
aside [the Court’s] actual holding [in Knox] that the legislature was constitutionally permitted to
define ‘sex offender’ to encompass persons like defendant here.” He also claims that the
majority “mischaracterizes the SORA court’s findings” and relies on them too heavily as the
Court in Knox assumed for purposes of its decision that the same central facts applied to those
registrants (i.e., the lack of any sexual component to their offenses and the lack of future risk of
sexual harm given ). Lastly, Judge Cannataro waxes poetic about stare decisis, concluding his
opinion by noting that he finds the “majority's desire to protect the due process rights of criminal
defendants . . .commendable,” but “only wish[es] it showed the same respect for the process by
which [the Court] overturn[s] precedent.”

Finally, though not binding on lower courts, as the two sections were not joined by
Judges Troutman and Halligan, Judge Rivera’s detailed explanation as to why Knox itself should
be overruled merits attention. Incredibly, Judge Rivera begins by offering that Knox completely
misunderstood the liberty interest at stake—it is not merely whether the registrant is bearing the
right label, but instead “it is the right not to be treated guilty of a crime the individual never
committed.” Recognizing the “severe consequences” the “sex offender” label carries (and
describing some of those consequences), Judge Rivera asserts that “a defendant has an interest in
retaining the status of a non-sex offender.” Judge Rivera then goes on to describe the ways in
which the justifications accepted by the Knox Court do not even survive rational basis review.
Lastly, she highlights recent federal decisions where courts found in favor of persons like Mr.
Brown challenging their New York registration requirements.

CAL Observes: First and foremost, the outcome in this case is a reminder to all practitioners that even
when the law seems to be against you, the only way to change it is to challenge it, just as Mr.
Brown did here. By all accounts, and according to nearly half the Court, Knox controlled Mr.
Brown’s fate. Yet creative lawyering and refusing to accept the status quo upended precedent
and, at a minimum, narrowed its application. Second, another notable takeaway from this case is
the import and future usefulness of the Court’s willingness to even consider the issue of
registrability on a SORA appeal. Generally, lower courts, most notably the First Department,
refuse to consider in an appeal from a SORA hearing a challenge to one’s registration
requirement where the underlying conviction occurred in New York State. Though the majority
disposes of that issue here in a footnote (footnote 3), seeming to again distinguish this case on its
facts, future litigants should still consider using this case to raise similar challenges to
registration even if the limitations described in the footnote do not apply. Finally, while it is
refreshing to see that two Judges, including the Chief Judge, are willing to recognize the severity
of SORA’s consequences and name those consequences, it remains disappointing that the other
six Judges on the Court are not yet inclined to do so. Again, all the more reason why litigants
need to keep bringing these cases to the Court to educate them and continue at least making
incremental change.