by Douglas Ankney

The Court of Appeals of New York held that application of the Sex Offender Registration Act (“SORA”) to Marcus Brown violated his “due process rights by impinging on his liberty interest to be free of the improper designation and registration as a sex offender” because his offenses involved “no sexual contact or motivation,” he was “not a sex offender,” and he “posed no risk of sexual threat at all.”

Brown robbed his aunt at gunpoint in her home while his 10-year-old cousin was present. He pleaded guilty to, inter alia, robbery in the first degree (Penal Law § 160.15) and unlawful imprisonment in the first degree (§135.10). “Unlawful imprisonment of a minor when the offender is not the parent of the victim is a SORA-eligible crime and brings defendant within the statutory definition of ‘sex offender, which, in turn, subjects defendant to mandatory sex offender registration, even where the crime, in fact, lacks a sexual act or motive, and where defendant poses no risk of future harm to children.” Correction Law § 168-a(2)(a)(i).

Appearing before the SORA court, Brown argued, in part, “that requiring him to register as a sex offender for a crime with no sexual conduct or motivation was unconstitutional as applied to him and defied the purpose of the registry.” The SORA court “found that defendant’s sole motivation was to steal money and that the offense involved ‘no sexual contact or motivation’ whatsoever. The court further found that defendant was not a ‘sex offender’ and ‘that he posed no risk of sexual threat at all.’ Nevertheless, the court determined it was ‘constrained by law’ under [People v. Knox, 903 N.E.2d 1149 (N.Y. 2009)] to mandate defendant’s registration.”

Brown timely appealed, and the Appellate Division affirmed based on Knox and its progeny. The New York Court of Appeals granted Brown leave to appeal.

The Court observed that “SORA labels as ‘sex offender(s)’ all persons convicted of a ‘kidnapping offense, provided the victim of such kidnapping related offense is less than seventeen years old and the offender is not the parent of the victim.” Correction Law § 168-a(1)-(2)(a)(i). “[A]n as-applied challenge calls on the court to consider whether a statute can be constitutionally applied to the defendant under the facts of the case.” People v. Stuart, 797 N.E.2d 28 (N.Y. 2003). The Knox Court consolidated three appeals of defendants subject to SORA as a result of kidnapping/unlawful imprisonment crimes where there was no proof that their crimes involved a sexual act or motive.

In Knox, a homeless woman with psychiatric issues attempted to take an eight-year-old girl from a park as a replacement for a child of whom the woman had recently lost custody. In People v. Cintron, 846 N.Y.S.2d 616 (N.Y. App. Div. 1st Dept. 2007), the defendant, who had a history of sexual violence including forced intercourse with a 16-year-old, locked his girlfriend and her two children inside an apartment for several days. And in People v. Jackson, 847 N.Y.S.2d 532 (N.Y. App. Div. 1st Dept. 2007), the defendant abducted and threatened to kill the child of a woman if she did not continue working for him as a prostitute.

The Knox Court upheld their convictions, concluding that “mandatory sex offender registration of non-parent defendants convicted of kidnapping or unlawful imprisonment of victims under 17 years old is rationally related to the legitimate governmental interest of protecting minors from those ‘who have shown themselves capable of committing sex crimes’ against children.” The Knox Court further reasoned that “a child cut off from familiar surroundings ‘is vulnerable to sexual abuse even if the offender’s desires are not the motive of the crime’”; “a kidnapper may plan to prostitute a child, or may seize an unplanned-for opportunity to do so”; and “the Legislature had a rational basis for concluding that, in a large majority of cases where people kidnap or unlawfully imprison other people’s children, the children either are sexually assaulted or are in danger of sexual assault.”

The Court in the present case distinguished Knox from Brown’s case. First, the SORA court found that Brown was not a sex offender; that the child involved was not even the target of the crime but had merely been at the wrong place at the wrong time, was not physically or sexually abused, was not detained for a prolonged period of time, and “there was no sexual contact or motivation on the defendant’s part at all”; and he “posed no risk of sexual threat at all.” No such findings were made in Knox.

Further, if the defendant in Knox had been successful in her kidnapping, the child would’ve been removed from familiar surroundings and left vulnerable to sexual abuse. But in Brown’s case, his cousin was never removed from familiar surroundings. Furthermore, the defendant in Jackson demonstrated his willingness to put a child in harm’s way to force the mother into prostitution, and the defendant in Cintron had a history of sexual violence directed at minors. Brown’s case contained nothing comparable. And Brown’s case was not an entirely “non family abduction” since the child victim was his cousin, the Court stated.

The Court observed that “a sex offender designation imposes a stigma that broadly impacts a defendant’s life and ability to participate in society” and concluded that “[a]pplying SORA to defendant violates his due process rights by impinging on his liberty interest to be free of the improper designation and registration as a ‘sex offender.’”

Accordingly, the Court reversed the judgment of the Appellate Division and vacated Brown’s SORA designation. See: People v. Brown, 2023 N.Y. LEXIS 1895 (2023).  

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