People v Daniel Talluto


People v. Daniel Talluto, (decided December 13, 2022)

Issue Presented: Whether Correction Law § 168-a(3)(b) requires any person subject to the Sex Offender Registration Act’s foreign registration requirements to be designated a “sexually violent offender” regardless of whether the underlying offense is violent in nature and simply because the foreign offense is “a felony in any other jurisdiction for which the [registrant] is required to register as a sex offender”?

Held: Yes, it does.

Discussion: In a decision by Judge Troutman, joined by Judges Cannataro, Rivera, Garcia, and Singas, the Court of Appeals affirmed the Fourth Department’s decision applying the Sex Offender Registration Act’s (“SORA”) “sexually violent offender” designation to a registrant residing in New York State who was required to register as a “sex offender” based on his conviction for a felony sex offense in Michigan. The case was heard by the Court after two Fourth Department Justices dissented below.

Eight years after being convicted of a sex offense in Michigan, Mr. Talluto relocated to New York State and duly registered with the Board of Examiners of Sex Offenders (the “Board”). Such registration was triggered by his having been convicted of a felony offense that required registration in Michigan. At Mr. Talluto’s risk level hearing, the court, sua sponte, designated Mr. Talluto a “sexually violent offender,” thereby requiring him to register in New York for life. The designation was not recommended by the Board or requested by the prosecution. The SORA court found it was applicable because the Correction Law’s definition of “sexually violent offense” includes in its “foreign offense” clause (§ 168-a(3)(b)) not only foreign offenses with the same “essential elements” as a New York State offense classified as “sexually violent,” but also any conviction of “a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred.” Over the dissent of two Justices, the Appellate Division affirmed the SORA court’s decision, finding that the statute, as written, required that Mr. Talluto be assigned the designation. The dissenters concluded that the language at issue was obviously carried over into the provision in question due to a drafting error by the Legislature and that applying it to Mr. Talluto would yield an absurd, unintended result.

In its decision upholding the Fourth Department’s determination, the Court of Appeals approached the issue presented as one of pure statutory interpretation. Finding the provision in question “clear and unambiguous,” the Court nevertheless examined the history of the statute and legislative materials in support. While it recognized, like all of the judges considering the case did, that the result was “problematic” as it collapses any distinction between “sexual offense” and “sexually violent offense” for most foreign registrants, the Court concluded that the language itself compelled the application of the designation to Mr. Talluto. The “sexually violent offender” designation, the Court also held, applied automatically based on a registrant’s offense of conviction and, unlike risk level determinations, are not subject to the SORA court’s discretion.

Judge Wilson filed a brief dissenting opinion in which he agreed with the majority’s statutory interpretation of the challenged provision, but disagreed with the mandatory nature of the designation itself. Citing favorably a dissent penned by Justice Renwick in a 2014 case from the First Department, People v. Bullock, 125 A.D.3d 1 (1st Dep’t 2014), Judge Wilson would have held that the SORA court has the discretion to decline to apply a designation when it is not warranted.

CAL Observes: Importantly, as both the majority and dissenting opinions recognize, no constitutional challenge to the “sexually violent offender” designation was preserved below and so was not considered by the appellate courts. Given the disparate treatment applied to registrants convicted of sex offense in New York State and those with foreign convictions, one can imagine an Equal Protection challenge having legs. While there is hope for future registrants that the Board will continue to not recommend the designation and most prosecutors and judges will likewise fail to enforce it, if and when they do, registrants should take care to preserve challenges to the designation based on its unconstitutionality. The Court’s decision also makes even more pressing the continuation (and perhaps strengthening) of existing efforts to advocate for the Legislature to fix what all agree is an unintended drafting error.