PEOPLE v. CORLEY (2025)

Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered on or about September 16, 2022, which, insofar as appealed from as limited by the briefs, granted defendant's motion to dismiss the Sex Offender Registration Act (Correction Law art 6–C) proceeding based on a finding that defendant's federal conviction of possession of child pornography is not a registrable sex offense in New York, unanimously reversed, on the law, without costs, and the matter remanded for further proceedings.

Defendant has not established that his relocation to a different jurisdiction nearby in Delaware renders this appeal moot (see People v. Melzer, 89 A.D.3d 1000, 1001, 933 N.Y.S.2d 705 [2d Dept. 2011], lv denied 19 N.Y.3d 803, 2012 WL 1592151 [2012]).

The court should have denied defendant's motion to dismiss the SORA proceeding insofar as defendant claimed that his federal conviction of possession of child pornography is not a registrable sex offense in New York. Correction Law § 168–a(2)(d)(iii), effective March 11, 2002, states “a ‘sex offense’ means: ․ a conviction of ․ any of the provisions of ․ 18 U.S.C. 2252A ․, provided that the elements of such crime of conviction are substantially the same as those which are a part of such offense as of the date on which this subparagraph takes effect.”  18 USC § 2252A(a)(5)(B), which criminalized the possession of child pornography, was amended in 2008 to include “knowingly access[ ] with intent to view” such illicit images (Enhancing the Effective Prosecution of Child Pornography Act of 2007, Pub L 110–358, § 203[b], 122 Stat 4001 [2008]).  That amendment did not materially redefine the crime to render it an “inappropriate predicate[ ] for SORA registration,” which was the purpose of the “substantially the same” language in subsection (iii) (Matter of North v. Board of Examiners of Sex Offenders of State of N.Y., 8 N.Y.3d 745, 752–753, 840 N.Y.S.2d 307, 871 N.E.2d 1133 [2007]).  Therefore, it remains a registrable sex offense.