Issue before the Court: Does New York’s Sex Offender Registry require registered individuals to notify law enforcement that they have a Facebook account?

Factual Background: Mr. Ellis was registered on New York State’s sex offender [SORA] registry. Law enforcement maintained that Mr. Ellis was therefore required to reveal that he had a Facebook account and his failure to do so prompted a felony indictment under Correction Law § 168-t. He moved to dismiss the indictment and argued that the Correction Law requirement that he reveal all “internet identifiers” did not mean that he had to register his Facebook account. After losing this argument in the trial court, Mr. Ellis pleaded guilty but he appealed.

 

Held: In a unanimous decision, the Court of Appeals agreed with  Mr. Ellis’ statutory interpretation. Correction Law § 168-f (4) requires individuals to provide a list of all their “internet identifiers,” which the Court said included email addresses and “screen names.” The statute, however, does not mandate that individuals reveal their internet accounts, including Facebook. Because the indictment, therefore, did not “charge defendant with a crime,” it was “jurisdictionally defective,” and should have been dismissed. 

 

Since Mr. Ellis used his “real, full name” on Facebook, he did not have a “screen name” to disclose to law enforcement. In dicta, the Court of Appeals mentioned that Facebook may ask DCJS to give them registrants’ screen names and email addresses, Correction Law § 168-a (16), in order to “prescreen or remove sex offenders from their services.” While the US Supreme Court held, in Packingham v. North Carolina, 137 S. Ct. 1730 (2017), that law enforcement cannot prohibit all sex offenders from using Facebook,  Facebook’s stated policy is that “convicted sex offenders aren’t allowed to use Facebook.” It’s not clear how often Facebook actually requests registrants’ screen names and emails and kicks them off the site.

 

CAL Observes: In the New York Law Journal article reporting this winning decision, Mr. Ellis’ successful defense attorney urged defendants who’ve been convicted in similar situations “to seek a reversal.”  Dan M. Clark, “Sex Offenders Need Not Disclose Facebook Accounts to Law Enforcement NY Court of Appeals Rules.” 

 

Since the Court of Appeals found that the indictment was jurisdictionally defective, this issue can be raised for the first time on appeal – even if the defendant pleaded guilty and even if he or she failed to litigate this issue in the trial court. See People v. Iannone, 45 N.Y.2d 589 (1978). Some case law further suggests that the issue could also be raised successfully for the first time in a post-conviction CPL 440 motion. Cf. People v. Reeves, 78 A.D.3d 1332 (3rd Dept. 2010)  (Defendant successfully used CPL 440 motion to argue that the accusatory instrument was defective because it did not sufficiently allege the crime of promoting prison contraband as subsequently interpreted by the Court of Appeals in People v. Finley, 10 N.Y.3d 647 (2008)). The future success of 440 motions to vindicate the principle announced in People v. Ellis remains to be seen.