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PEOPLE of the State of New York, Plaintiff v. B.G., Defendant.
The defendant is charged by way of an Information, together with supporting depositions and affidavits, with a violation of New York's so-called “sex offender registration act” (hereinafter SORA) by failing to comply with two registration requirements of the statute. He now moves for dismissal of the accusatory instrument on the ground of facial insufficiency. For the reasons which follow, the motion was granted at the conclusion of oral argument. Due to the rather involved analysis necessary to make the determination, the Court issues this written decision.
B.G. was stopped on February 19, 2004 by Monroe County Deputy Sheriff Bridget Davis for a traffic violation. As the result of a routine record check she became aware of the fact that the defendant is a registered sex offender. He was charged with violations of Corrections Law, section 168–f, subsections (2)(a) and (4) in that he failed to annually verify his current address and failed to notify the Division of Criminal Justice Services (hereinafter DCJS) of a change of address within ten days of the change.
Filed with the Information were two supporting depositions and two affidavits. Both affidavits were signed by Anthony Pesce who is a DCJS employee and the Principal File Clerk in charge of the Sex Offender Registry. In this decision the Court addresses only the shorter one-page affidavit of Mr. Pesce, which was filed in order to establish the necessary foundation for the Court to consider the sex offender registration form. This form appears to have been signed by the defendant and it is essential to sustain both charges leveled against him.
Criminal Procedure Law, section 100.40 provides as follows:
1. An information, or a count thereof, is sufficient on its face when:
(a) It substantially conforms to the requirements prescribed in section 100.15; and
(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and
(c) Non hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof. (emphasis added)
In addition to the requirements of the statute, whenever the People seek to have documents of the kind at issue in this case considered by the Court on a motion to dismiss for facial insufficiency, caselaw mandates that the evidentiary foundational requirements that apply be strictly adhered to.
It is well settled that as a foundational requirement for the admission of Breathalyzer test results, evidence must be introduced both that the Breathalyzer was in proper working condition when the test was given to defendant, and that the chemicals used in the test were of the proper kind and in the proper proportion * * *. Out of practical necessity, the foundational requirement may be met by documentary proof. While Breathalyzer documents may thus properly be received under the business records exception to the hearsay rule enunciated in CPLR 4518 ․ admissibility is conditioned upon strict compliance with the provisions of subdivisions (a) and (c) of that section. (People v. Mertz, 68 NY2d 136). (citations omitted). People v. Garneau, 120 AD2d 112, 115 (1986).
1. Elements of the Offense.
Initially, the defendant claims that an information charging a violation of SORA must allege, among other things, (1) that the failure to register was knowing and intentional and (2) that the State provided the defendant with prior notice of his obligation to register.
A resolution of the first of the alleged foregoing elements requires the court to determine whether the statute in question is one that imposes strict liability or requires proof of and consequently at the pleading stage, allegations of mens rea.
This Court is inclined to agree with the reasoning set forth in People v. Patterson, 185 Misc 2d 519 (N.Y.C. Crim. Ct.—2000) wherein the court held that SORA is a statute that imposes strict liability. The reasoning in that case included (1) the fact that the nature of the proscribed conduct does not necessarily involve intentional conduct, (2) a consideration of the wording of the statute, i.e., “fails” in the disjunctive form and aside from use of the alternative “refuses”, (3) the fact that the statute is regulatory in nature in that its primary if not sole purpose is to provide for public safety, and (4) that it is appropriate to place special responsibilities on a person already in the criminal justice system and to impose strict liability for any violation of those responsibilities.
In contrast to the considered analysis in People v. Patterson, supra, in People v. Manson, 173 Misc 2d 806 (N.Y.C. Crim. Ct.—1997), the Court merely cited use of the word “refuses” in the statute and concluded that such word “presupposes volitional conduct” without any further analysis.
This Court concludes, therefore, that the statute in question does impose strict liability and that the Information does not have to allege intent.
People v. Patterson, supra, also addressed the question of prior notice while People v. Manson, supra, did not. As the Patterson court points out and as urged by the defendant in the case at bar, proof of prior notice is an essential element of the offense.
The imposition of strict liability for Failure-to-Register is not so harsh as it might appear at first. That is so because SORA (“sex offender registration act”) requires that an Offender must be given notice of his obligation to register. (matter in parenthesis added)
SORA sets forth in considerable detail how the members of each potential class of Sex Offenders subject to the Act's registration obligations must be expressly notified of their registration obligations. Thus Correction Law § 168–d in substance mandates that the court must advise a newly convicted Sex Offender of his registration obligations at the time of the Offender's conviction.
SORA's notice requirement is important for constitutional reasons. It is, of course, a presumption “deeply rooted in the American legal system” that “ignorance of the law or a mistake of law is no defense to criminal prosecution.” (citation omitted). But it is equally true that due process of law requires that a citizen be given fair warning that a particular activity is proscribed by law before that citizen can be convicted for violating that law. (citation omitted)
These two sometimes competing principles (citation omitted) have come into conflict before in connection with statutes bearing some resemblance to SORA. Long ago in the mid-twentieth century, many jurisdictions in the United States enacted broad criminal registration statutes. These statutes required previously convicted criminals to register with the police upon entering a given city or town․In Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), the U.S. Supreme Court set aside one such statute on due process grounds because defendant had no fair notice of the registration statute and its requirements.
Lambert involved a Los Angeles Municipal Code ordinance. The ordinance provided in substance that any convicted felon who came to Los Angeles for a period of five or more days was required to register with the Police Department, and further provided that any felon who failed to so register was guilty of a criminal offense. The Supreme Court noted that criminal liability under the ordinance could attach when the defendant's only activity was merely to be present in Los Angeles. The Lambert Court reasoned that the concept of fair warning or notice that is an important part of due process of law required that “actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance” could be had. “Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.” Lambert, 355 U.S. at 229–230, 78 S.Ct. 240, 2 L.Ed.2d 228.
SORA is far more narrowly drawn than the general criminal registration ordinance struck down in Lambert․ SORA's notice requirements ․ more than satisfy this standard. Thus, by mandating that the government must give a Sex Offender express notice of his registration obligation before the Offender can be prosecuted for Failure-to-Register, § 168–t complies with the constitutional requirement of due process.
In sum, SORA strikes a careful balance between defendant's due process rights and the community's interest in protecting its most vulnerable citizens from truly terrible crimes․
In other words, SORA provides that the Offender must be given notice of his registration obligations, but that once such notice is given the burden of compliance rests squarely on the Offender. 185 Misc 2d at pp. 532–534.
The Court is, based on the foregoing analysis and precedents, required to consider the sufficiency of the proof contained in the information and supporting depositions and affidavits on the question of prior notice to the defendant. In this regard, the Pesce affidavit becomes critical because the sex offender registration form is the only evidence provided that the defendant had in fact received prior notice of his obligation to register. Without Pesce's affidavit there would be no foundation to consider the form which obviously constitutes hearsay evidence. In addition, the People have, for obvious reasons, filed a copy of the registration form rather than the original.
2. Evidentiary Requirements—Hearsay Exceptions.
As pointed out in Weinstein, Korn & Miller, New York Civil Practice, vol. 9, § 4540.02, when secondary evidence (by means of a copy) of the contents of a relevant government record is sought to be used to prove the existence of a fact stated or shown in such record, three obstacles must be overcome: (1) the original record must be competent, under an exception to the hearsay rule, to prove such a fact, (2) the non-production of the original record must be excused, to satisfy the best evidence rule, and (3) the secondary evidence, if in writing, must be properly authenticated—i.e., must be shown to be what it purports to be, an accurate copy—as in the case of any documentary evidence. Satisfying elements (1) and (3) will usually satisfy (2) as well. In short, an applicable hearsay exception and authentication are the keys to getting such a document admitted in evidence or qualified so as to be considered in support of an Information.
An exception to the hearsay rule may be established under the business records exception or the public documents exception.
A. Business Records Exception.
The business records exception is contained in CPLR 4518(c). It reads as follows:
Other records. All records, writings and other things referred to in sections 2306 and 2307 (medical records of a hospital or government entity concerning the condition or treatment of a patient; records of a library; and records of a department or bureau of a municipal corporation or of the state) are admissible in evidence under this rule and are prima facie evidence of the facts contained, provided they bear a certification or authentication by the head of the hospital, laboratory, department or bureau of a municipal corporation or of the State or by an employee delegated for that purpose or by a qualified physician. (matter in parenthesis added)
Subsection (c) of the statute relating to government records is an extension of subsection (a) with two key distinctions: (1) documents can be admitted without the necessity of a live witness in court to lay the foundation required by subsection (a) and (2) the prima facie effect of the contents once the document is received. However, and most importantly, the requirements of both subsections must be complied with in order for a document to qualify under subsection (c).
․ As was held in Liberto v. Worcester Mut. Ins. Co., 87 AD2d 477, 452 N.Y.S.2d 74, appeal dismissed 57 NY2d 955, lv. denied 58 NY2d 824, and as is made clear by the Eighth Annual Report of the Judicial Conference to the Legislature on the CPLR (1970), on the basis of which subdivision (c) was added to CPLR 4518, admissibility under the latter subdivision is governed by the same standards as the general business record exception in subdivision (a). Thus, a certificate made under CPLR 4518(c) which does not set forth that the entries in the certified record were made at the time of the events they record or within a reasonable time thereafter is not admissible under that subdivision. (footnote omitted) People v. Mertz, 68 NY2d 136, 147–148, 506 N.Y.S.2d 290, 296 (1986).
The certificate will serve to authenticate the record, i.e., establish its genuineness. But the certificate must do more than this. The contents of the certification must demonstrate that the requirements of subdivision (a) of CPLR 4518 have been met, i.e., that the record was made in the regular course of business, that it was the regular course of the business to make a record of this type and that the record was made at or about the time of occurrence of the event recorded. In other words, the elements of the business records hearsay exception must still be demonstrated; the certification procedure of subdivision (c) merely dispenses with the need for in-court foundation testimony. The certificate must contain the same information that would be provided by a witness if the record were being sponsored through live testimony. Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, 1992, C4518:10, p.122, 3rd par.
The Pesce affidavit contains no language which would satisfy the requirements of CPLR 4518(a) and it therefore fails to qualify under subsection (c) as well.
B. Public Documents Exception.
The public documents exception to the hearsay rule may be established under (1) CPLR 4520, (2) statutes dealing with specific types of documents, such as CPLR 4528 covering weather reports and CPLR 4533 covering stock market reports published in a newspaper, or (3) the common law. The first two possibilities do not apply in the case now before the Court because CPLR 4520 is applicable only in very limited situations and must meet no less than six requirements which are discussed in Practice Commentaries, supra, C4520:1, and there does not appear to be a specific statute that addresses the sex offender registration form.
The common law exception was addressed in People v. Smith, 258 AD2d 245, 248–249 (4th Dept.—1999):
In our view, defendant's DMV abstract falls squarely within the common-law public document exception: “When a public officer is required or authorized, by statute or nature of the duty of the office, to keep records or to make reports of acts or transactions occurring in the course of the official duty, the records or reports so made by or under the supervision of the public officer are admissible in evidence” (Prince, Richardson on Evidence, op cit., at 688). The Commissioner of the Department of Motor Vehicles, a public officer, is required to retain on file certificates of conviction relating to Vehicle and Traffic Law offenses for a minimum of four years (citations omitted) and to furnish, upon request, “an abstract of the operating record of any person * * *, which abstract shall include enumeration of any convictions of such person of a violation of any provision of any statute relating to the operation of a motor vehicle” (citations omitted). Thus, because the Commissioner is required by statute to keep a record of defendant's convictions and to make an abstract of driving record enumerating those convictions, defendant's DMV abstract qualifies for admission under the common-law public document exception to the hearsay rule. It is not necessary to decide whether it also qualifies for admission under the much narrower statutory exception (see CPLR 4520 ․).
As in People v. Smith, supra, the sex offender registration form was required to be kept by DCJS and the contents thereof provided to various personnel within the criminal justice system when appropriate. It therefore qualifies as a public document under the common law, regardless of whether it qualifies or fails to qualify under CPLR 4518(c) or 4520. However, as noted below, it must also be properly authenticated.
3. Evidentiary Requirements—Authentication.
Authentication of a government document that is otherwise admissible under one of the exceptions to the hearsay rule requires a showing of two elements: (1) attestation and (2) formal execution. Attestation establishes that the copy sought to be introduced has been compared with the original. Formal execution involves two separate elements; namely, establishing authority to sign by the one doing the signing and establishing the genuineness of the signature. Practice Commentaries, supra, C4540:1, p. 314, first two paragraphs.
A. CPLR 4540.
This section provides the primary statutory basis of general application for the authentication of government records. It is entitled “Authentication of Official Record of Court or Government Office in the United States” and reads in relevant part as follows:
(a) Copies permitted. An official publication, or a copy attested as correct by an officer or a deputy of an officer having legal custody of an official record of the United States or of any state, territory or jurisdiction of the United States, or of any of its courts, legislature, offices, public bodies or boards is prima facie evidence of such record.
(b) Certificate of officer of the state. Where the copy is attested by an officer of the state, it shall be accompanied by a certificate signed by, or with a facsimile of the signature of, the clerk of a court having legal custody of the record, and, except where the copy is used in the same court or before one of its officers, with the seal of the court affixed; or signed by, or with a facsimile of the signature of, the officer having legal custody of the original, or his deputy or clerk, with his official seal affixed; or signed by, or with a facsimile of the signature of, the presiding officer, secretary or clerk of the public body or board and, except where it is certified by the clerk or secretary of either house of the legislature, with the seal of the body or board affixed. If the certificate is made by a county clerk, the county seal shall be affixed.
The first requirement for self-authentication under CPLR 4540 is attestation of the copy by an appropriate official in accordance with subdivision (a). The attestation is a hearsay exception in which the officer's out-of-court statement to the effect that “this is a true copy” is accepted for its truth. Subdivision (a) makes the officer's attestation “prima facie evidence,” thereby creating a rebuttable presumption that the copy is a genuine copy. Practice Commentaries, supra, C4540:1, p. 314, 1st par. At one time it appeared to be necessary for the attestation to contain express language that the copy had been compared with the original and found to be accurate, but that no longer seems to be the case. All that is required today is verbiage that connotes that a comparison has been made, such as “attested as correct” or “certified as correct”. Weinstein, Korn & Miller, supra, § 4540.05.
The Pesce affidavit satisfies the first requirement by the statement: “I hereby certify that the annexed record ․ is a true and exact copy ․”
As to the requirement of formal execution as contained in CPLR 4540, it is noted in McKinney's Practice Commentaries, supra, C4540:3, p. 316, 1st paragraph, that if the attesting official has an official seal, the affixation of the seal to the attestor's signature (or signature facsimile) will make the copy entirely self-proving. It seems that a statement of delegation of authority is also self-serving as a part of the presumptions that accompany a sealed public document. See Wigmore on Evidence, vol. VII, § 2168, pp. 813–815. Reliability of a seal can be assumed because of the difficulty of forging seals, Practice Commentaries, supra, C4540:3, p. 316, 1st par., and because Penal Law § 170.10 declares the forgery of a public record to be a class D felony. Weinstein, Korn & Miller, supra, § 4540.07. If the attestor has no official seal (or, in the case of an attesting deputy, the deputy's superior has no seal), this provision (CPLR 4540) will be unavailing and some other form of proof of authenticity of the copy must be offered. See People v. Brown, 1985, 128 Misc 2d 149, 153–54 (Co. Ct. Madison Co.—1985); see also CPLR 4543; Practice Commentaries, id.
Here, the affidavit of Mr. Pesce bears no seal and thus there has been no compliance with CPLR 4540.
B. CPLR 4518(c).
In People v. Brown, 128 Misc 2d 149, 153–54 (Co. Ct. Madison Co.—1985), recognizing the distinction between CPLR 4540 and 4518(c) with respect to the requirements for authentication, the court stated as follows:
CPLR 4518(c) on the other hand sets down more general execution standards stating that the copy of the public document shall “bear a certification or authentication by the head of the hospital, laboratory, library, department or bureau of a municipal corporation or of the state, or by an employee delegated for that purpose ․” The underlying CPLR sections are as general, CPLR 2306(a) requiring a copy to be “certified as correct” by the same class of persons and CPLR 2307(b) simply providing for the copy to be “certified”. No seal is required under CPLR 4518(c) and the department head or the employee delegated to certify can use any recognized method.
Not only is a seal not required under 4518(c), but, as is the case under 4540, authorization of the person signing the certification is presumed from his or her own statement asserting such authority. In Matter of Quinton A., 68 AD2d 394, 400 (2nd Dept.—1979), the court observed:
With respect to the certification of such records by the assistant director of Coney Island Hospital, it should be noted that under CPLR 2306 (entitled “Hospital records; medical records of department or bureau of a municipal corporation or of the state”), subdivision (a), it is provided, Inter alia, that where a subpoena duces tecum is served upon a hospital, or upon a department of a municipal corporation or State for the production of records relating to the condition or treatment of a patient, “a transcript or reproduction certified as correct by the superintendent or head of the hospital, department or bureau, or His assistant ․ may be produced unless otherwise ordered by a court” (emphasis supplied). After reading such language in Pari materia with that contained in CPLR 4518 (subd. (c) ), and in the absence of evidence adduced by appellants to the contrary, I am of the opinion that the Family Court was justified in concluding that the assistant director of Coney Island Hospital had authority to certify the hospital record in dispute (cf. Brown v. Collins, 223 So.2d 453 (La.App.) ). Acts of a public or quasi-public officer which presuppose the existence of other acts and conditions to make them legally operative are presumptive proof of the latter (cf. Swarthout v. Ranier, 143 NY 499, 504). The general presumption is that no official or person acting under his oath or obligations of office will do anything contrary to his official duty, or omit anything which his official duty requires to be done (Matter of Marcellus, 165 NY 70, 77).
The problem with the Pesce affidavit is that because it does not qualify for admission under CPLR 4518(c) in other respects as noted above, it would seem that the certification standard provided by it cannot be applied to authenticate a document that might qualify for admission under some other exception to the hearsay rule, such as the one for public documents.
C. The Common Law.
Again, reference is made to People v. Brown, supra, for a consideration of possible authentication under the common law.
․ Under common law a copy of a public document was proved by a sworn (or examined) copy requiring live testimony or by the use of an exemplified copy, the latter requiring an official seal. Richardson on Evidence (10th Ed.) §§ 648–51. 128 Misc 2d at p. 151.
As noted in Richardson on Evidence (10th Ed.) § 9–206:
An examined or sworn copy is a copy which is proved by the testimony of a witness who has compared the copy with the original record, word for word, or who has examined the copy, word for word, while another person read the original aloud.
The Pesce affidavit does not meet the foregoing standards required by the common law for authentication.
The affidavit of Mr. Pesce satisfies the requirements of the common law exception to the hearsay rule but it is not properly authenticated and thus it is inadmissible. As such, it may not be considered by the Court in support of the factual allegations of the Information. Therefore, defendant's motion to dismiss the Information for facial insufficiency is granted, without prejudice.
John P. Lomenzo Jr., J.
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Docket No: XXXXX
Decided: August 12, 2004
Court: Justice Court, New York,
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